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A COLLECTION 

OF 

ARGUMENTS  AND  SPEECHES 

BEFORE  COURTS  AND  JURIES. 

BY  EMINENT  LAWYERS. 


INTRODTJCTORY  NOTES,  ANALYSES,  ETC. 


WILLIAM  L.  SNYDER, 

OF  THE  NEW  YORK  BAR. 


NEW  YORK: 

BAKER,  YOORHIS  & CO.,  PUBLISHERS, 
66  NASSAU  STREET. 

1904. 


1 


1 


Copyright,  i88i. 

By  baker,  VOORHIS  & CO. 


Tenth  Impression. 


3. -Vo 


preface. 


340 


The  object  and  design  of  this  work  is  to  preserve  some  of  the 
best  efforts  of  eminent  lawyers,  selecting  those  which  have  justly 
been  regarded  as  models  of  legal  reasoning  and  forensic  power. 
The  task  is  an  exceedingly  difficult  one,  in  view  of  the  fact  that 
some  of  the  most  distinguished  advocates  have  left  but  few  traces 
of  their  intellectual  labor.  Their  fame  is  often  traditional;  the 
recollections  of  their  great  efforts  and  high  achievements  fade 
in  the  near  generations.  The  memory  of  the  eloquence  of 
Ogden  Hoffman  and  David  Graham  lingers  in  the  minds  of  a 
few  living  men,  and  in  another  decade  will  have  been  forgotten. 
What  remains  of  the  forensic  utterances  of  Dexter  and  Otis;  of 
John  Adams,  Joseph  Hopkinson,  Jared  Ingersoll,  Seargent  S. 
Prentiss,  Robert  Goodale  Harper,  Luther  Martin,  Edward  D. 
Baker,  Rufus  Choate  even,  and  a hundred  others,  whose  names 
are  familiar,  who  have  graced  the  profession  with  ffieir  genius  and 
learning  ? Whatever  remains— in  memoirs,  in  fugitive  pamphlets, 
in  reports  of  trials,  or  wherever  found-it  is  our  purpose  to 
gather  and  preserve. 

With  this  view,  and  believing  that  a collection  of  legal  speeches 
and  arguments,  embracing  topics  upon  various  branches  of  the  law, 
would  be  instructive  and  valuable,  especially  to  the  younger  mem- 
bers of  the  profession,  the  publishers  began  many  years  ago  to 
collect  materials  for  this  work.  The  original  intention  was  to 
divide  it  into  subjects  corresponding  with  the  mam  divisions  of 
jurisprudence,  and  to  illustrate  each  by  the  arguments  and  opinions 
of  distinguished  advocates  and  jurists.  It  was,  however,  found 
impracticable  to  pursue  this  plan,  and  it  was  finally  determined 
to  select  the  best  efforts  of  eminent  lawyers  in  this  country  and 
Great  Britain  and  arrange  them  conveniently,  with  an  analysis  of 
each,  and  a full  index  to  indicate  the  points  of  chief  importance 
to  the  practitioner  and  student. 


iv 


PREFACE. 


Much  valuable  information  can  be  acquired  from  arguments 
upon  which  learned  counsel  have  spent  weeks  and  months  of  thought 
and  labor,  revealing,  in  some  instances,  the  results  of  a lifetime  of 
study  and  research — information  of  incalculable  practical  value  to 
lawyers  in  the  active  practice  of  their  profession.  Great  profit  will 
also  be  derived  from  studying  the  plan  which  successful  advocates 
have  pursued  in  presenting  a cause  to  the  court  or  jury  ; and  the 
manner  in  which  they  have  arranged  and  woven  their  materials,  so 
as  to  persuade  the  will,  excite  the  sympathies,  or  convince  the 
judgment. 

Care  has  been  taken  to  give  the  speeches  or  arguments  in  full, 
omitting  only  detailed  statements  of  evidence  of  no  general  inter- 
est, whenever  such  omission  could  be  made  without  disturbing  the 
plan  and  harmony  of  the  argument. 

The  original  purpose  of  the  publishers  was  to  make  the  work 
so  full  and  complete,  that  they  might  with  propriety  call  it  a 
“ Cyclopedia  of  Legal  Eloquence,  Argument,  and  Opinion.”  But 
whether  they  will  be  able  to  succeed  in  so  ambitious  an  under- 
taking must  depend  upon  the  favor  with  which  this  volume  is 
received.  If  it  meets  with  the  approval  and  support  of  the  pro- 
fession and  the  public,  two  additional  volumes  will  be  produced, 
which  it  is  believed  will  be  sufficient  to  properly  present  the  design 
of  the  work.  It  is  hoped  that  the  book  may  be  useful  as  a work 
of  reference  as  well  as  a standard  collection  of  legal  eloquence. 

On  behalf  of  the  publishers  and  myself,  I cordially  thank  those 
gentlemen  who  have  given  access  to  their  libraries  and  manuscripts 
during  the  preparation  of  this  work,  and  for  the  kindly  interest  they 
have  manifested  in  its  success. 

WILLIAM  L.  SNYDER. 

New  York,  March,  i88i. 


CONTENTS 


AEGUMENT  OF  PATKICK  HENRY, 

ON  THE  Right  of  a State,  During  the  Revolution, 
TO  Confiscate  British  Debts  .... 

AEGUME^^T  OF  WILLIAM  PINKNEY, 

On  the  Law  of  Constructive  Treason,  in  the  De- 
fense OF  John  Hodges  , . . . . 

AEGUMENT  OF  WILLIAM  WIET, 

In  the  Case  of  Gibbons  v.  Ogden  .... 

AEGUMENT  OF  DANIEL  WEBSTEE, 

In  the  Case  of  Ogden  v.  Saunders  .... 
(~^ — 

SPEECH  OF  SEEGEANT  S.  PEENTISS, 

In  Defense  of  Hon.  Edward  C.  Wilkinson,  of  Mississippi, 
AND  Others,  Indicted  for  Murder 

SPEECH  OF  DAVID  PAUL  BEOWN, 

In  Defense  of  Alexander  William  Holmes,  Indicted 
FOR  Manslaughter  on  the  High  Seas  . 

SPEECH  OF  WILLIAM  H.  SEWAED, 

In  Defense  of  the  Negro.  William  Freeman,  Indicted 
FOR  THE  Murder  of  John  G.  Van  Nest 

AEGUMi:NT  OF  CHAELES  O’CONOE, 

For  the  Claimants,  in  the  Case  of  the  Brig-of-War 
General  Armstrong  . . . * . 


PAOI 

1 

35 

47 

67 

85 

125 

149 

191 


VI 


COXTENTS. 


SPEECH  OF  EUFUS  CHOATE, 

On  Behalf  of  Helen  Maria  Dalton,  in  the  DaltcTn 
Divorce  Case  ....... 

AEGUMENT  OF  EDWIN  M.  STANTON, 

In  Defense  of  Hon.  Daniel  E.  Sickles,  Indicted  for  the 
Murder  of  Philip  Barton  Key  .... 

SPEECH  OF  JAMES  T.  BEADY, 

In  Defense  of  the  “ Savannah  Privateers,”  Indicted  for 
Piracy  ........ 

SPEECH  OF  WILLIAM  M.  EYAETS, 

For  the  Prosecution  in  the  Case  of  the  “Savannah 
Privateers,”  Indicted  for  Piracy 

AEGUMENT  OF  JOHN  K.  POETEE, 

On  the  Constitutionality  of  Legal  Tender  Acts. — 
Metropolitan  Bank  v.  Van  Dyck 

AEGUMENT  OF  WILLIAM  A.  BEACH, 

In  Defense  of  Samuel  North  and  Others,  Charged  with 
Tampering  with  Soldiers’  Votes 


AEGUMENT  OF  JEEEMIAII  T.  BLACK, 

In  Defense  of  the  Right  to  Trial  by  Jury 

AEGUMENT  OF  DAVID  DUDLEY  FIELD, 

On  the  Constitutionality  of  the  “ Enforcement  Act  ” . 

SPEECH  OF  THOMAS  EESKINE, 

For  the  Prosecution,  in  the  Proceedings  against  Thomas 
Williams,  for  Publishing  Paine’s  “ Age  of  Reason  ’*  . 

SPEECH  OF  SIE  JAMES  MACKINTOSH, 

In  Behalf  of  Jean  Peltier,  Indicted  for  a Libel  against 
Napoleon  Bonaparte  ..... 


247 


325 


343 


374 


421 


449 


481 


517 


551 


567 


CONTEXTS.  Vii 

SPEECH  OF  WILLIAM  C.  PLUNKET, 

rioB 

Opening  for  the  Crown  in  Rex  v.  Forbes  and  Others. — 

Conspiracy  and  Riot  ....  . 613 

SPEECH  OF  JOHN  HENRY  NORTH, 

Opening  for  the  Defense  in  Rex  v.  Forbes  and  Others. — 

Conspiracy  and  Riot  . . . « 641 

SPEECH  OF  BARTHOLOMEW  HOAR, 

Opening  for  Plaintiff  in  Massy  v.  The  Marquis  of  Head- 

fort.— Damages  FOR  Criminal  Conversation  . . 66/ 

SPEECH  OF  THOMAS  QUIN, 

Opening  for  Defendant  in  Massy  v.  The  Marquis  of 

Headfort. — Damages  for  Criminal  Conversation  . 677 

SPEECH  OF  Rt.  Hon.  GEORGE  PONSONBY, 

Closing  for  Defendant  in  Massy  v.  The  Marquis  of 

Headfort. — Damages  for  Criminal  Conversation  . 683 

SPEECH  OF  JOHN  PHILPOT  CURRAN, 

Closing  for  Plaintiff  in  Massy  v.  The  Marquis  of  Head- 
fort.— Damages  for  Ci^iminal  Conversation  . . 692 

Baron  SMITH’S  CHARGE  TO  THE  JURY. 

In  the  Case  of  Massy  v.  The  Marquis  of  Headfort. — 

Damages  for  Criminal  Conversation  o . . 708 


Public  Opinion  invariably  against  the  Prisoner — James  T.  Brady  34 
Uncertainty  of  Law — William  Paley  . . . » 84 

Importance  of  the  Doctrine  of  Stare  Decisis — Luther  Bradish  124 

The  Growth  of  Principles — Hon.  Joseph  Neilson  . . 246 

Without  Law  there  is  no  Security— Jeremy  Bentham  . 480 

Declaration  to  the  Mob,  in  the  Court  of  King’s  Bench — Lord 

Mansfield  .......  550 


APPEI^DIX. 

rAOE 

Dr.  Spencer's  Chart,  referred  to  in  Mr.  Seward's  Speech  . 717 

Requests  to  Charge  and  Rulings  in  the  Sickles  Case  , , 718 

Letter  of  Marque  to  "■  Savannah  Privateers,"  issued  by  Jefferson 

Davis  ........  722 

Garibaldi's  Letter,  referred  to  by  Mr.  Brady  and  Mr.  Evarts  . 723 

Extracts  from  Vattel's  Law  of  Nature  and  Nations  . . 723 

Abstract  of  Documentary  Evidence  in  the  Case  of  the  “ Savannah 

Privateers”  .......  725 

Extracts  from  De  Hart  and  O’Brien  on  Military  Law  . . 726 

War  Amendments  to  the  U.  S.  Constitution  . • . 728 

Ode  and  Verses  from  Peltier's  Indictment  . • • 730 


INTRODUCTION. 


The  history  of  human  experience  has  shown  that  the  individuals 
who  have  exerted  the  most  potent  influences  in  the  world  were  those 
who  possessed,  in  the  most  eminent  degree,  the  supreme  power 
of  eloquence.  The  men  who  could  persuade  others  have  held, 
among  civilized  nations  the  highest  places  in  the  State,  and  gath- 
ered the  honors  and  rewards  which  belong  to  an  exalted  station. 
The  power  which  an  orator  possesses,  touches  the  feelings  and 
passions  of  the  human  heart,  controls  the  will,  and  convinces 
the  judgment.  The  proper  solution,  therefore,  of  the  most  im- 
portant issues  which  have  arisen,  with  respect  to  the  fortunes  of 
nations  and  of  individuals,  are  the  result  of  its  exercise.  Accord- 
ing to  the  magnitude  and  consequence  of  the  cause  which  he  advo- 
cates, so  will  be  the  scope  and  extent  of  the  advocate’s  power. 
This  truth  is  embodied  in  the  trite  saying  that  “ the  pen  is  mightier 
than  the  sword.”  The  pen  indicates  the  powers  of  reason,  the  re- 
sources of  the  mind  and  intellect ; the  sword  signifies  physical 
force,  and  military  authority.  The  former  represents  the  object  to 
be  accomplished  ; the  latter,  »the  means  of  accomplishing  that  ob- 
ject and  conducting  it  to  a successful  consummation. 

Wars  and  revolutions  are  the  agencies  by  which  popular  rights 
are  established.  Every  great  war,  since  time  began,  has  con- 
tributed to  some  extent,  either  directly  or  indirectly,  to  the  ad- 
vancement and  welfare  of  the  commonwealth  of  man.  The 
sword  is  the  instrument  by  which  revolution  is  accomplished  ; it  is 
the  means  to  an  end.  But  it  is  the  voice  of  the  orator  echoing  the 
protest  of  the  masses  against  vice  and  oppression,  against  bad  gov- 
ernment and  bad  laws;  which  arouses  popular  sentiment,  puts 
armies  in  motion,  and  makes  revolution  possible.  As  men  advance 
from  the  shadows  of  barbarism  into  the  light  of  civilization  ; as 
savages  become  citizens,  and,  in  the  highest  sense,  reasonable  crea- 
tures, they  are  influenced  by  reason  and  appeals  to  judgment, 
rather  than  by  passion  and  a challenge  to  arms.  Consequently,  as 
the  world  grows  older,  it  grows  better,  for  the  ballot  is  gradually 
usurping  the  functions  of  the  bayonet,  and  what  was  at  one  time 


X 


INTRODUCTION. 


accomplished  by  the  sword,  is  now  more  perfectly  accomplished  by 
the  exercise  of  the  suffrage.  But  the  power  behind  the  ballot  is 
identical  with  the  power  behind  the  bayonet.  The  force  of  elo- 
quence which  incites  men  to  fight,  is  the  same  force  which  influ- 
ences them  to  vote. 

Hence,  it  follows  that  the  most  distinguished  names  in  history 
are  those  of  the  world’s  orators,  rather  than  its  generals.  Many 
of  the  latter  are  associated  with  memories  of  splendid  empire,  arbi- 
trary power,  military  despotism;  the  former  with  whatever  charters, 
whatever  laws,  whatever  institutions  or  customs  exist  to-day,  by 
which  the  greatest  measure  of  liberty  is  secured  to  the  citizen,  and 
the  dearest  and  commonest  rights  guaranteed  to  the  subject.  The 
two  most  famous  orators  of  antiquity  were  the  greatest  of  advocates, 
and  both  were  martyrs  in  the  cause  of  popular  government  and 
universal  citizenship.  Their  names  will  endure  to  the  end  of  time; 
their  influence  will  be  felt  to  the  remotest  generation. 

The  truth  of  these  general  observations  as  to  the  influence  of 
eloquence,  none  will  deny.  It  will  not  be  necessary,  therefore, 
to  pursue  this  branch  of  the  subject  further,  by  any  attempt  to 
illustrate  it  with  examples  from  history.  It  will,  doubtless,  be 
conceded,  that,  in  its  most  comprehensive  sense,  eloquence  is  the 
greatest  power  which  it  is  possible  to  exercise  upon  the  affairs  of 
men. 

The  two  important  inquiries,  then,  which  naturally  suggest 
themselves  in  considering  this  topic  are,  can  this  power  be  ac- 
quired ? and,  if  so,  how  can  it  be  acquired  ? The  lives  of  the 
great  orators — some  of  the  most  distinguished  of  whom  have  been 
men  of  untiring  energy  and  application — demonstrate  that  a man 
of  fair  talent  and  ability  may,  by  dint  of  perseverance  and  study, 
become  an  accomplished  speaker  and  successful  advocate. 

It  is  true  he  cannot  expect  to  command  that  superb  eloquence 
which  springs  from  a mind  originally  endowed  with  the  attributes 
of  genius — wit,  humor,  poetic  fancy,  a dramatic  emotional  na- 
ture. There  is,  indeed,  a kind  of  ideal  eloquence,  a superior  dis- 
play of  intellectual  power,  accompanied  by  a sort  of  magnetism 
which  thrills  and  excites,  or  charms  and  entrances — called  forth  sud- 
denly, when  affairs  of  public  or  individual  concern  have  reached  a 
climax — which  is  born  of  genius,  and  is  the  fruit  of  inspiration.  It 
is  defined  perfectly  by  Mr.  Webster,  when  he  says:  “True  eloquence, 
indeed,  does  not  consist  in  speech.  It  cannot  be  brought  from 
far.  Labor  and  learning  may  toil  for  it,  but  they  will  toil  in  vain. 


INTRODUCTION. 


xi 


Words  and  phrases  may  be  marshalled  in  every  way,  but  they  can- 
not compass  it.  It  must  exist  in  the  man,  in  the  subject,  and  in 
the  occasion.  Affected  passion,  intense  expression,  the  pomp  of 
declamation,  all  may  aspire  to  it ; they  cannot  reach  it.  It  comes, 
if  it  comes  at  all,  like  the  outbreaking  of  a fountain  from  the  earth, 
or  the  bursting  forth  of  volcanic  fires,  with  spontaneous,  original, 
native  force.  The  graces  taught  in  the  schools,  the  costly  orna- 
ments and  studied  contrivances  of  speech,  shock  and  disgust  men, 
when  their  own  lives,  and  the  fate  of  their  wives,  their  children, 
and  their  country,  hang  on  the  decision  of  the  hour.  Then  words 
have  lost  their  power,  rhetoric  is  vain,  and  all  elaborate  oratory 
contemptible.  Even  genius  itself  then  feels  rebuked  and  subdued, 
as  in  the  presence  of  higher  qualities.  Then  patriotism  is  elo- 
quent ; then  self-devotion  is  eloquent.  The  clear  conception,  out- 
running the  deductions  of  logic  ; the  high  purpose,  the  firm  re- 
solve, the  dauntless  spirit,  speaking  on  the  tongue,  beaming  from 
the  eye,  informing  every  feature,  and  urging  the  whole  man  on- 
ward— right  onward  to  his  object — this,  this  is  eloquence  ; or, 
rather,  it  is  greater  and  higher  than  all  eloquence — it  is  action, 
noble,  sublime,  godlike  action  ! ” 

It  is  true,  that,  to  be  an  ideal  orator,  one  must  possess  the  best 
faculties  and  rarest  gifts  which  it  is  possible  for  nature  to  bestow ; 
elements  not  taught  in  books,  and  which  cannot  be  acquired.  The 
profession  of  the  advocate  embraces  a science,  universal  in  its  ap- 
plication, “ which,”  in  the  ele'gant  language  of  Sir  William  Black- 
stone,  “ distinguishes  the  criterions  of  right  and  wrong ; which 
teaches  to  establish  the  one,  and  prevent,  punish,  and  redress  the 
other  ; which  employs  in  its  theory  the  noblest  faculties  of  the 
soul,  and  exerts  in  its  practice  the  cardinal  virtues  of  the  heart ; a 
science  which  is  universal  in  its  extent,  accommodated  to  each  in- 
dividual, yet  comprehending  the  whole  community.”  In  the  exer- 
cise of  his  powers,  therefore,  the  orator  and  advocate  will  be  called 
upon  to  touch  the  feelings,  passions,  and  sympathies,  and  appeal 
to  every  impulse  within  the  circle  of  human  experience.  To 
reach  the  ideal  standard,  an  orator  must  be  many-sided,  and 
combine  within  himself  every  great  mental  quality — a vigorous 
understanding  and  tenacious  memory,  wit,  judgment,  imagination, 
a knowledge  of  human  nature,  enthusiasm,  self-possession,  dramatic 
power,  moral  courage,  a strong  will,  and  native  energy.  He  should 
possess,  also,  certain  physical  gifts — a clear  voice,  and  sturdy 
frame.  To  become  a great  jury  lawyer,  many  of  the  characteristics 


XU 


INTRODUCTION. 


named  are  essential,  especially  the  power  to  read  human  nature. 
But  it  is  indeed  seldom  that  all  these  rare  qualifications  are  be- 
stowed upon  a single  individual.  In  a majority  of  instances,  men 
who  have  possessed  but  few  of  these  gifts,  have  risen  to  the 
highest  walks  of  the  profession.  A man  of  genius,  who  possesses 
industry,  and  the  will,  never  fails  to  be  great,  in  accordance  with 
the  measure  of  his  opportunities.  Genius  and  industry,  united, 
accomplish  all  things  ; genius  divorced  from  industry,  seldom  ac- 
complishes anything. 

Yet  it  is  possible  for  a man  of  vigorous  mind  and  strong  will  to 
become  an  impressive  and  convincing  speaker,  and  even  to  achieve 
distinction  and  acquire  fame  as  an  advocate,  without  being  an 
ideal  orator;  for,  at  the  forum,  knowledge  is  a commanding  and  con- 
trolling power,  and  in  its  most  practical  sense,  knowledge  is  not  a 
gift;  it  comes  not  by  inspiration  or  intuition — it  must  be  acquired. 
In  this  view  of  the  subject,  eloquence  may  safely  be  said  to  be  an  art 
which  may  be  attained  by  any  person  possessing  fair  talent  and 
ability,  who  may  choose  to  devote  sufficient  time  and  labor  for  its 
acquisition. 

The  first  requisite  in  order  to  become  an  advocate,  is  to  get  a 
practical,  thorough  knowledge  of  the  subjects  which  he  will  be 
called  upon  to  discuss.  To  a certain  point,  there  is  no  difference 
in  the  line  of  preparation  and  study  to  be  pursued,  whether  the 
orator  is  training  for  the  senate  or  the  forum  ; whether  it  is  desired 
to  excel  in  parliamentary  or  forensic  eloquence ; as  an  advocate  or 
a statesman.  Both  must  possess  in  the  main  the  same  kind  of 
knowledge,  since  it  is  the  purpose  of  both — and  the  object  of  elo- 
quence always  is — to  persuade  and  convince.  The  uses,  also,  to 
which  this  common  knowledge  is  put  are  often  analogous;  and  the 
questions  which  each  are  called  upon  to  discuss  in  their  several 
departments,  frequently  grow  out  of  the  same  general  principles  of 
equity  and  public  policy.  The  popular  representative  has  his  country 
and  his  constituents  for  his  clients,  while  the  advocate  has  confided  to 
his  trust  the  interests  of  an  individual.  The  duty  of  the  former  is 
to  frame  laws  ; the  duty  of  the  latter  to  maintain  them,  punish 
infractions  and  violations  thereof,  secure  to  the  citizen  their  benefit 
and  protection,  and  prevent  deprivation  of  life,  liberty  or  property 
without  due  process  of  law. 

Certain  kinds  of  information  and  particular  branches  of  study, 
relating  mainly  to  constitutional  and  philosophical  history,  are  essen- 
tial, whether  the  field  of  labor  is  the  senate  or  the  forum.  But  the 


INTRODUCTION. 


xm 


advocate,  in  order  to  excel  in  his  profession,  must  master,  in  addi- 
tion, the  elementary  and  fundamental  principles  upon  which  the 
great  body  of  the  common  law  rests  ; and  these,  though  compara- 
tively few,  require  years  of  application  to  thoroughly  acquire,  since 
they  constitute  the  groundwork  and  foundation  of  all  legal  science. 
This  technical  knowledge  may,  for  convenience,  be  classified  as  fol- 
lows : (i)  the  law  of  crimes,  or  criminal  jurisprudence  ; (2)  the 
system  of  equity  jurisprudence,  akin  to,  and  founded  upon  the  law 
of  ethics  and  moral  philosophy ; (3)  the  principles  regulating  the 
law  of  contracts;  (4)  the  philosophy  of  the  law  as  to  liability  and 
damages  for  injuries,  independent  of  contracts,  growing  out  of  the 
negligence  and  carelessness  of  individuals — willful  and  malicious 
acts  whereby  another  is  injured  in  his  good  name,  health,  reputa- 
tion, or  property  rights — designated  as  the  law  of  torts;  (5)  the 
principles  and  history  of  the  law  of  real  property.  In  addition  to 
these,  a thorough  acquaintance  with  the  law  of  evidence  is  abso- 
lutely essential.  The  advocate  must  be  able  to  bring  out  all  the 
facts  which  are  to  be  woven  into  his  appeal  to  the  jury.  The  tes- 
timony must  be  elicited  in  a skillful  manner,  and  frequently  the 
truth  must  be  developed  from  the  lips  of  hostile  and  unwilling 
witnesses. 

He  should,  in  addition,  possess  information  upon  general  sub- 
jects. The  fine  arts,  polite  literature,  poetry,  music,  painting,  and 
sculpture,  should  be  studied  and  made  to  contribute  to  the  common 
stock  of  knowledge.  An  advocate  will  find  occasion  to  use  all  he 
knows  in  a variety  of  ways.  The  minds  of  men  are  as  varied  as 
the  tints  in  the  clouds,  and  if  the  advocate  is  familiar  with  the 
subject,  a fair  knowledge  of  human  nature  will  indicate  what  to 
say  upon  a particular  branch  of  the  discussion,  in  order  to  remove 
prejudices  and  inspire  confidence.  From  a mind  filled  with  classic 
imagery  and  poetic  pictures,  drop,  almost  unconsciously,  tropes  and 
metaphors  which  fix  the  thought,  rivet  the  attention,  and  lend  a 
pleasing  charm  to  the  speaker’s  style.  Examples  of  the  modest  and 
effective  use  of  metaphor  will  be  found  in  many  of  the  arguments 
and  speeches  in  this  volume.  In  this  respect  the  style  of  Mr. 
Prentiss  may  be  studied  with  profit. 

In  order,  then,  to  become  a great  advocate,  industry  and  perse- 
verance are  essential.  No  one  about  entering  upon  the  duties  of 
his  profession  should  fall  into  the  error  that  he  can  depend  upon 
genius  alone  and  succeed.  The  lawyer  that  leans  only  upon  genius, 
in  this  day  and  age,  leans  upon  a slender  reed  ; for  without  appli- 


XIV 


INTRODUCTION. 


cation  and  industry  it  is  impossible  even  for  one  possessing  a 
delicate  fancy,  a fervid  imagination,  and  fluency  of  speech,  to 
excel  as  an  orator  and  an  advocate.  As  well  might  he  attempt 
to  pierce  its  disc  by  shooting  feathers  at  the  sun.  His  very 
fluency  might  lead  him  into  blunders  which  would  render  his 
position  ridiculous.  He  must  acquire  knowledge,  and  a perusal  of 
these  pages  will  show  how  much  it  is  necessary  for  him  to  acquire. 

There  are  many  instances  in  which  a rich  vocabulary,  in 
itself  extraordinary,  has  been  improved  by  cultivation,  and  de- 
veloped to  a very  remarkable  degree.  But  after  all  “ knowledge 
is  power.”  Back  of  the  vocabulary  there  must  be  knowledge. 
Genius  must  have  materials  to  work  upon  ; and  knowledge  can 
only  be  acquired  by  laborious  study  and  close  application.  The 
old  maxim  holds  good  in  this  respect,  that  there  is  no  excellence 
without  great  labor.  The  degree  and  excellence  of  professional 
success  are  commensurate  with  the  industry  and  diligence  of  the 
individual.  The  triumphs  of  the  forum  are  the  reward  and  result 
of  unceasing  application.  Contemplation  of  the  difficulties  mas- 
tered and  overcome  by  those  who  figure  in  history  as  men  of 
genius,  inspires  wonder  and  admiration. 

The  Athenian,  universally  regarded  as  the  first  and  greatest 
advocate  and  orator  who  has  lived,  had  to  overcome  an  impedi* 
ment  in  his  speech,  an  obstacle  which  lay  at  the  threshold  of  his 
ambition  ; one  which  would  have  discouraged  and  disheartened 
ordinary  men,  since  it  was  an  infirmity  which  forbade  the  very  use 
of  language  and  the  power  of  articulation.  He  was  laughed  down  ; 
in  his  first  attempts  he  stammered,  hesitated,  and  failed.  But  he 
persevered  until  he  attained  the  summit  of  human  excellence.  The 
secret  of  the  power  of  the  Roman  orator  was  arduous  devotion  to 
study,  and  Middleton  says  that  “ his  industry  was  incredible,  be- 
yond the  example  or  even  conception  of  our  days.”  Sheridan 
failed  in  his  maiden  speech  in  Parliament,  and  was  advised  by 
Woodfall  to  keep  to  his  line  as  a dramatist ; but  the  advice  was 
met  with  the  vehement  declaration,  “ It  is  in  me,  and  it  shall  come 
out  of  me.”  But  Sheridan,  bright  and  gifted  as  he  was,  only  suc- 
ceeded by  careful  and  elaborate  preparation  and  study.  Fox, 
“ the  most  brilliant  and  accomplished  debater  the  world  ever  knew,” 
only  became  such  by  degrees,  through  toil  and  difficulty.  Lord 
Mansfield  studied  eloquence  all  his  life,  and  often  practiced  his 
manner  and  gestures  before  a glass.  Lord  Sommers  went  to  the 
front  in  a five-minute  speech  at  the  trial  of  the  Seven  Bishops, 


INTRODUCTION. 


XV 


but  in  that  successful  effort  was  condensed  all  the  learning  on  the 
subject — the  fruits  of  a lifetime  of  professional  study.  Curran,  who 
stood  next  to  Erskine  as  a jury  lawyer,  was  known  at  school  as 
“Stuttering  Jack.”  When  Disraeli  was  laughed  down,  and  his 
scream  of  disappointment,  “ the  time  will  come  when  you  shall  hear 
me,”  could  scarcely  be  heard  above  the  derisive  laughter  his  failure 
had  provoked,  who  dreamed  that  his  talent,  energy,  and  perseverance 
would  one  day  make  him  Prime  Minister  of  the  British  Empire,  wear- 
ing the  title  of  Earl  of  Beaconsfield.  William  Pinkney  let  out  the 
secret  in  open  court  once,  when  he  told  the  judges  that  his  opinion 
on  the  question  in  controversy  had  not  been  hastily  formed  since 
the  commencement  of  the  trial ; “ it  is,”  he  said,  “ the  result  of  a 
deliberate  examination  of  all  the  authorities,  of  a thorough  inves- 
tigation of  the  law  in  all  its  forms,  made  at  leisure,  and  under  a 
deep  sense  of  a fearful  responsibility  to  my  client.”  Yet  no  man 
ever  sought,  with  more  care  and  ingenuity,  to  convey  the  impres- 
sion that  he  never  studied,  than  William  Pinkney.  Rufus  Choate 
was  a great  worker.  He  labored  incessantly,  and,  like  Henry  Clay, 
practiced  elocution  daily,  it  is  said,  for  a period  of  more  than  forty 
years. 

Other  examples,  almost  without  number,  could  be  given.  We 
might  enumerate  the  names  of  famous  men  who  have  attracted  the 
world’s  attention  at  the  forum  and  in  the  senate,  and  the  stories  of 
their  lives  would  be  all  alike  in  this,  that  toil  and  application  are 
the  price  of  success  ; and  that  eloquence,  after  all,  in  its  practical 
sense,  is  an  art,  which  may  be  acquired  by  any  person  possessing 
fair  talent  and  ability  who  may  choose  to  devote  sufficient  time  and 
labor  for  its  acquisition. 

If  there  are  any  exceptions  to  this  rule  they  are  rare  indeed. 
Where  is  there  an  example  of  an  advocate  or  an  orator  who  was 
carried  to  the  summit  of  earthly  ambition  through  the  sheer  force 
of  his  genius  ? There  is  one  great  name,  which  is  perhaps  re- 
garded as  within  the 'exception — the  famous  orator  of  Virginia, 
and  powerful  advocate  of  the  American  Revolution — Patrick 
Henry.  A perusal  of  his  argument,  however,  in  Jones  v.  Walker, 
given  in  this  work,  will  go  far  to  prove  that  even  this  wonderful 
man  is  within  the  rule,  not  the  exception.  If  we  can  trust  his  biog- 
rapher, he  was  good  for  nothing  but  an  orator.  The  idea  of 
ever  making  a successful  merchant  of  him  provokes  a smile,  while 
to  the  acquaintances  of  his  early  manhood  the  mere  proposition 
that  he  might  perhaps  become  an  advocate  and  an  orator  would 


XVI 


lOTRODUCTION. 


have  occasioned  even  greater  surprise.  He  was  indeed  a child  of 
Nature.  He  despised  the  school  room,  and,  when  opportunity- 
offered,  would  wander  off,  with  rod  and  gun,  among  the  woods 
and  hills.  He  loved  Nature — the  clouds,  the  forest,  all  that  makes 
the  landscape.  The  supposition  that  he  would  ever  become  a distin- 
guished advocate,  and  the  greatest  orator  of  his  age,  exerting  an 
influence  against  the  British  king  equal  to  that  of  John  Adams, 
would  have  been  regarded  by  his  friends  as  an  extravagant  chi- 
mera. He  did  not  commence  the  study  of  law  until  after  he  was 
married  and  settled,  and  had  thrice  failed  in  mercantile  and  agri- 
cultural pursuits.  But  the  fact  remains  that  his  mind  was  stored 
with  knowledge  which  could  be  acquired  only  by  study  and  appli- 
cation; and  his  argument  upon  the  right  to  confiscate  “British 
debts,”  is  entirely  inconsistent  with  the  theory  that  he  was  indiffer- 
ent as  to  professional  learning  and  acquirements. 

The  secret,  then,  of  this  wonderful  art,  which  has  exerted  such 
an  influence,  and  is  so  universally  desired,  consists  in  two  simple 
propositions — knowing  what  to  say,  and  how  to  say  it.  Knowledge 
of  the  subjects  to  be  discussed  is  the  first  requisite;  an  acquaint- 
ance with  practical  rules  of  rhetoric,  is  the  second.  The  latter 
study  is  necessary,  and  its  importance  should  not  be  underrated  ; 
but  the  student  might  read  all  the  works  that  have  been  written 
upon  it  from  Aristotle  to  Whately,  and  from  Whately  to  the 
present  time,  and  yet  fail  in  his  purpose.  Hume  comes  nearest  the 
truth  when  he  says  that  eloquence  can  only  be  taught  by  examples. 
These  are  spread  before  the  reader  in  the  following  pages,  and 
among  them  will  be  found  some  of  the  best  models  in  the  range  of 
legal  eloquence.  A study  of  them  will  show,  in  every  instance, 
that  clear  statement  is  an  essential  feature,  accompanied  by  an  ex- 
position of  elementary  principles  applied  to  the  facts — the  whole 
modestly  and  gracefully  adorned  with  the  beauties  of  rhetoric. 

W.  L.  S. 


Arguments  and  Speeches 


BEFOEE  COUETS  ANB  JUEIES. 


ARGUMENT  OF  PATRICK  HENRY, 


On  the  Right  of  a State,  during  the  Revolution,  to 
Confiscate  British  Debts. 

[Jones  V.  Walker,  2 Paine.] 

AT  A CIRCUIT  COURT  OF  THE  UNITED  STATES,  HELD  AT 
RICHMOND,  VA.,  NOVEMBER  TERM,  1791. 


Analysis  of  Mr.  Henry’s  Argument. 


s.  Debts  a subject  of  forfeiture  in  common 
war. 

2.  Hostile  nations  have  the  right  to  remit 

to  its  citizens  debts  due  the  enemy. 

3.  Extent  to  which  a sovereign,  in  time  of 

war,  is  justified  in  confiscating  debts. 

4.  Grotius  and  Vattel  on  the  subject  of 

confiscation. 

5 Effect  of  the  revolution  on  British  debts. 
Greatness  of  America. 

6.  The  law  of  custom  only  binding  on  na- 

tions adopting  it. 

7.  The  law  of  custom  prevailing  in  Europe 

not  binding  in  America. 

8.  America  an  independent  nation  long 

prior  to  1783. 

9.  The  acts  of  confiscation  warranted  by 

necessity. 

10.  Distinction  between  common  war  and 

revolution. 

11.  Picture  of  the  horrors  of  the  American 

revolution. 


12.  England,  by  withdrawing  her  protec- 

tion, destroyed  title  in  all  property. 

13.  The  issuing  of  paper  money  by  the  col- 

onies compelled  by  necessity. 

14.  Contracts  dissolved  without  the  consent 

of  the  king  of  Great  Britain. 

15.  Consequences  which  would  have  result- 

ed had  England  conquered  America. 

16.  In  a state  of  nature,  municipal  rights 

and  obligations  are  dissolved. 

17.  Debts,  like  other  property,  subject  to 

t forfeiture. 

18.  Effect  of  the  payment  of  paper  currency 

to  the  loan  office. 

19.  Application  of  the  law  of  salvage. 

20.  Defendant’s  debt  did  not  exist  when  the 

treaty  of  peace  was  signed. 

21.  Plaintiff  must  show  full  compliance  with 

the  treaty. 

22.  Power  of  interpretation  of  treaties  in  the 

courts. 

23.  A chose  in  action  a subject  of  forfeiture. 


The  argument  of  Mr.  Henry  in  the  great  case  of  “ The  British  Debts,”  is 
regarded  by  his  biographer  as  presenting  the  most  distinguished  display  of  the 
professional  talents  of  the  famous  Virginia  orator  and  patriot.  The  controversy 
involved  the  honor  of  his  native  commonwealth,  and  the  question  as  to  limitations 
of  her  sovereign  power  was  brought  before  the  court  for  review.  When  Virginia 
became  an  independent  State,  owing  no  longer  allegiance  to  the  mother  country, 
could  she  exercise  the  absolute  power  which  inheres  in  every  sovereignty,  and 
confiscate  the  debts  of  her  enemies,  or  was  the  treaty  made  between  the  United 
States  and  Great  Britain,  at  the  close  of  the  revolution,  declaring  that  there 
should  not  be  any  lawful  impediment  in  the  collection  of  British  debts,  the  su- 
preme law  ? The  case  arose  upon  the  following  facts: 

Dr.  Thomas  Walker,  in  the  county  of  Albemarle,  in  the  colony  of  Virginia 

1 [11 


2 


ARGUMENT  OF  PATRICK  HENRY 


prior  to  the  American  revolution,  on  the  iith  day  of  May,  1772,  executed,  under 
his  hand  and  seal,  a bond  to  the  mercantile  house  of  Farrell  & Jones,  British 
subjects,  for  ;i^2,903,  I5i-.  8d.  sterling.  After  the  close  of  the  revolution,  in 
1791,  William  Jones,  as  surviving  partner  of  the  firm  of  Farrell  & Jones,  brought 
suit  in  the  United  States  Circuit  Court,  at  Richmond,  Va.,  to  recover  the  amount 
due  on  the  bond.  A brief  synopsis  of  the  pleadings  will  enable  the  reader  to 
thoroughly  comprehend  the  questions  discussed. 

There  were  five  pleas  interposed  to  the  declaration,  as  follows ; (i)  First, 
payment,  upon  which  issue  was  joined.  (2)  Second,  that  an  act  of  the  legisla- 
ture passed  during  the  revolution,  October  20,  1777,  made  it  lawful  for  a citizen 
of  the  commonwealth,  owing  money  to  a subject  of  Great  Britain,  to  pay  the 
same,  or  any  part  thereof,  from  time  to  time,  into  the  loan  office  of  the  State,  and 
take  a certificate  for  the  same  in  the  name  of  the  creditor,  which  receipt  should 
discharge  him  from  so  much  of  the  debt;  and  exhibiting  a certificate  for  $7,173 
(;i^2,i5i,  i8j.)  in  bar  of  so  much  of  plaintiff’s  demand.  (3)  Third,  that  the 
debt  had  escheated  to  the  State,  under  an  act  of  Assembly,  passed  May  3d,  1779, 
declaring  “ that  all  the  property,  real  and  personal,  within  the  commonwealth, 
belonging  at  that  time  to  any  British  subject,  should  be  deemed  to  be  vested  in 
the  commonwealth;”  and  further,  that  a demand  for  its  recovery  was  barred  by 
the  act  of  May  6th,  1782,  declaring  “ that  no  demand  whatsoever,  originally  due 
to  a subject  of  Great  Britain,  should  be  recoverable  in  any  court  of  this  common- 
wealth.” (4)  Fourth,  that  the  king  of  Great  Britain  and  his  subjects  were  still  alien 
enemies,  and  that  the  state  of  war  still  continued,  on  the  ground  of  the  several 
direct  violations  of  the  definite  treaty  of  peace,  which  follows : i.  In  continuing 
to  carry  off  the  negroes  in  his  possession,  the  property  of  American  citizens,  and 
refusing  to  deliver  them,  or  permit  the  owners  to  take  them,  according  to  the  ex- 
press stipulations  of  that  treaty;  2.  In  the  forcible  retention  of  the  forts  Niagara 
and  Detroit,  and  the  adjacent  territory;  3.  In  supplying  the  Indians,  who  were 
at  war  with  the  United  States,  with  arms  and  ammunition,  furnished  within  the 
territories  of  the  United  States,  to  wit,  at  the  forts  Detroit  and  Niagara,  and  at 
other  forts  and  stations  forcibly  held  by  the  troops  and  armies  of  the  king  with- 
in the  United  States;  and  in  purchasing  from  the  Indians,  within  the  territories 
aforesaid,  the  plunder  taken  by  them  in  war  from  the  United  States,  and  the 
persons  of  American  citizens  made  prisoners;  which  several  infractions,  the  plea 
contends,  had  abolished  the  treaty  of  peace  and  placed  Great  Britain  and  the 
United  States  in  a state  of  war  ; and  that  hence  the  plaintiff,  being  an  alien  ene- 
my, had  no  right  to  sue  in  the  courts  of  the  United  States.  (5)  Fifth,  that  the 
debt  was  extinguished  and  annulled  by  a dissolution  of  the  British  government  in 
this  country,  on  the  4th  of  July,  1776. 

The  plaintiff  replied  to  the  second  plea,  insisting  on  the  treaty  of  peace  of 
^783,  whereby  it  was  stipulated  that  creditors  on  either  side  should  meet  with  no 
lawful  impediment  to  the  recovery  of  bona  fide  debts  theretofore  contracted,  and 
also  the  Constitution  of  the  United  States  declaring  treaties  then  made,  or  which 
should  thereafter  be  made,  to  be  the  supreme  law  of  the  land,  anything  in  the 
Constitution  or  laws  of  any  State  to  the  contrary  notwithstanding.  The  defend- 
ant rejoined,  that  the  treaty  had  been  annulled  by  violations  of  it  on  the  part  of 
Great  Britain;  and,  further,  that  the  debt  was  not  within  the  treaty,  inasmuch  as 
it  had  been  discharged  (or  at  least  ;i^2,i5i,  Ss.  of  it)  by  payment  to  the  loan  office 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


3 


of  the  State  of  Virginia.  Plaintiff  demurred  to  the  rejoinder,  and  to  the  third, 
fourth  and  fifth  pleas,  which  brought  the  following  questions  squarely  before  the 
court.  First. — Was  the  debt  annulled  by  the  dissolution  of  the  government 
which  existed  when  the  debt  was  contracted  ? Second. — When  Virginia  became 
a sovereign  State,  on  the  4th  of  July,  1776,  had  she  the  power  and  authority  to 
confiscate  British  debts  and  sequestrate  British  property  ? Third. — Was  the  debt 
revived  by  the  treaty  of  peace  of  1783  between  the  United  States  and  Great 
Britain,  whereby  it  was  stipulated  that  creditors  on  either  side  should  meet  with 
no  lawful  impediment  in  the  recovery  of  all  bona  previously  contracted? 

Fourth. — Could  a British  subject  derive  benefit  under  a treaty  which  had  been 
violated  on  several  distinct  occasions  by  the  British  king  ? 

Mr.  Henry  discussed  these  issues  with  eminent  learning,  skill  and  inge- 
nuity, and  in  a manner  so  eloquent  as  to  give  it  rank  among  the  great  legal  argu- 
ments, and  one  which,  in  some  respects,  has  not  been  surpassed  at  the  judicial 
forum.  He  established  first  the  proposition,  that  since  debts  were  property  sub- 
ject to  confiscation  in  common  wars,  arising  upon  the  slightest  imaginary  pre- 
texts, or  invoked  through  selfishness  solely  for  conquest  and  empire,  a fortiori 
were  they  subject  to  forfeiture  in  a revolution  “ commenced  in  attainder,  perfidy 
and  confiscation.”  That  when  Virginia  became  an  independent  State  by  virtue 
of  Jefferson’s  immortal  declaration,  she  was  immediately  clothed  with  power  to 
exercise  the  right  of  eminent  domain,  and  to  take  to  herself  the  debts  of  her 
enemies;  and  having  exercised  this  right,  the  debt  was  discharged  and  extin- 
guished, and  beyond  the  purview  of  the  treaty  of  peace,  and  could  not,  there- 
fore, be  revived  thereby.  That,  even  if  the  treaty  could  operate  upon  the  debt, 
no  British  subject  could  take  advantage  of  it,  because  the  British  government 
had  violated  its  terms,  and  thereby  annulled  its  provisions.  It  was  a great  ar- 
gument, and  attracted  wide-spread  attention.  Mr.  Henry  occupied  three  days 
in  its  delivery,  and  Mr.  Wirt  says,  that  during  that  time  the  court-room  was 
crowded  to  its  utmost  capacity,  and  that  there  could  not  be  got  together  a quorum 
of  the  legislature  then  in  session  at  Richmond.  Legislators,  Senators,  ladies  of 
fashion,  everybody  crowded  to  the  court-room  to  listen  to  the  stirring  eloquence 
of  one  of  the  greatest  of  living  orators. 

The  case  was  argued  twice:  in  1791  before  Judges  Johnson  and  Blair  of  the 
Supreme  Court,  and  Griffin,  judge  of  the  district,  and  again,  in  1793,  before 
Judges  Jay,  Iredell,  and  the  same  district  judge.  The  case  was  decided  against 
Mr.  Henry,  in  favor  of  the  English  creditor.  (2  Paine’s  C.  Ct.  Rep.  p.  688.) 
The  argument  given  here  was  made  upon  the  first  hearing,  and  is  taken  from 
Mr.  Wirt’s  life  of  Patrick  Henry.  That  gentleman  tells  us  that  it  is  from  Mr. 
Robertson’s  stenographic  notes,  from  which  an  imperfect  analysis  Was  made, 
though  the  report,  he  says,  may  unquestionably  be  relied  on,  so  far  as  it  professes 
to  state  the  principles  of  law  and  the  substance  of  the  argument;  but, as  a sample 
of  eloquence  it  is  subject  to  all  the  objections  urged  to  the  printed  debates  of  the 
Virginia  Convention. 

The  following  eminent  gentlemen  took  part  in  the  argument : for  the 
plaintiff,  Mr.  Ronald,  Mr.  Baker,  Mr.  Wickham,  and  Mr.  Starke  ; for  the  de- 
fendant, Mr.  Henry,  Mr.  Marshall  (afterwards  Chief  Justice  of  the  United 
States),  Mr.  Alexander  Campbell,  and  Mr.  Innis,  the  attorney-general  of  Vir- 
ginia. Mr.  Henry  said  : 


4 


ARGUMENT  OF  PATRICK  HENRY 


May  it  please  your  Honors: — I stand  here  to  support,  ac- 
cording to  my  power,  that  side  of  the  question  which  respects  the 
American  debtor.  I beg  leave  to  beseech  the  patience  of  this  hon- 
orable court,  because  the  subject  is  very  great  and  important,  and 
because  I have  not  only  the  greatness  of  the  subject  to  consider, 
but  those  numerous  observations  which  have  come  from  the  op- 
posing counsel  to  answer.  Thus,  therefore,  the  matter  proper  for 
my'  discussion  is  unavoidably  accumulated.  Sir,  there  is  a circum- 
stance in  this  case  that  is  more  to  be  deplored  than  that  which  I 
have  just  mentioned,  and  that  is  this:  those  animosities  which  the 
injustice  of  the  British  nation  hath  produced,  and  which  I had 
well  hoped  would  never  again  be  the  subject  of  discussion,  are 
necessarily  brought  forth.  The  conduct  of  that  nation  which  bore 
so  hard  upon  us  in  the  late  contest,  becomes  once  more  the  subject 
of  investigation.  I know,  sir,  how  well  it  becomes  a liberal  man 
and  a Christian  to  forget  and  to  forgive.  As  individuals  professing 
a holy  religion,  it  is  our  bounden  duty  to  forgive  injuries  done  us 
as  individuals.  But  when  to  the  character  of  Christian  you  add 
the  character  of  a patriot,  you  are  in  a different  situation.  Our 
mild  and  holy  system  of  religion  inculcates  an  admirable  maxim 
of  forbearance.  If  your  enemy  smite  one  cheek,  turn  the  other  to 
him.  But  you  must  stop  there.  You  cannot  apply  this  to  your 
country.  As  members  of  a social  community,  this  maxim  does  not 
apply  to  you.  When  you  consider  injuries  done  to  your  country, 
your  political  duty  tells  you  of  vengeance.  Forgive  as  a private 
man,  but  never  forgive  public  injuries.  Observations  of  this  nature 
are  exceedingly  unpleasant,  but  it  is  my  duty  to  use  them. 

I.  Debts  a subject  of  forfeiture  in  common  war. 

The  first  point  which  I shall  endeavor  to  establish  will  be,  that 
debts  in  common  wars  become  subject  to  forfeiture;  and  if  for- 
feited in  common  wars,  much  more  must  they  be  so  in  a revolution 
war,  as  the  late  contest  was.  In  considering  this  subject,  it  will  be 
necessary  to  define  what  a debt  is.  I mean  by  it  an  engagement  or 
promise  by  one  man  to  pay  another  for  a valuable  consideration 
an  adequate  price.  By  a contract  thus  made  for  a valuable  con- 
sideration, there  arises  what,  in  the  law  phrase,  is  called  a lien  on 
the  body  and  goods  of  the  promisor  or  debtor.  This  interest 
which  the  creditor  becomes  entitled  to  in  the  goods  and  body  oi 
his  debtor,  is  such  as  may  be  taken  from  the  creditor,  if  he  be 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


5 


found  the  subject  of  a hostile  countryo  This  position  is  supported 
by  the  following  authorities: 

Here  Mr.  Henry  cited  copious  extracts  from  Grotius  and  Vattel,  which  seemed 
to  support  his  position.  He  then  proceeded  : 

This  authority  decides,  in  a most  clear  and  satisfactory  manner, 
that,  as  a nation,  we  had  powers  as  extensive  and  unlimited  as  any 
nation  on  earth.  This  great  writer,  after  stating  the  equality  and 
independence  of  nations,  and  who  are  and  who  are  not  enemies, 
does  away  the  distinction  between  corporeal  and  incorporeal  rights, 
and  declares  that  war  gives  the  same  right  over  the  debts  as  over 
the  other  goods  of  an  enemy.  He  illustrates  his  doctrine  by  the 
instance  of  Alexander’s  remitting  to  the  Thessalians  a debt  due  by 
them  to  the  Theban  commonwealth.  This  is  a case  in  point;  for 
supposing  the  subjects  of  Alexander  had  been  indebted  to  the 
Thebans,  might  he  not  have  remitted  the  debts  due  by  them  to  that 
people,  as  well  as  the  debts  due  them  by  his  allies,  the  Thessalians  ? 
Let  me  not  be  told  that  he  was  entitled  to  the  goods  of  the  Thebans 
because  he  had  conquered  them.  If  he  could  remit  a debt  due 
by  those  whose  claim  of  friendship  was  so  inferior,  those  who  were 
only  attached  to  him  by  the  feeble  ties  of  contingent  and  temporary 
alliance;  if  his  Macedonians,  his  immediate  and  natural  subjects, 
were  indebted  to  the  Thebans,  could  he  not  have  remitted  their 
debts  ? 

2.  Hostile  nations  have  the  right  to  remit  to  its  citizens 

DEBTS  DUE  THE  ENEMY. 

This  author  states,  in  clear,  unequivocal  terms,  by  fair  inference 
and  unavoidable  deduction,  that  when  two  nations  are  at  war, 
either  nation  has  a right,  according  to  the  laws  of  nature  and  na- 
tions, to  remit  to  its  own  citizens  debts  which  they  may  owe  to  the 
enemy.  If  this  point  wanted  further  elucidation,  it  is  pointedly 
proved  by  the  authority  which  I first  quoted  from  Grotius,  that  it 
is  an  inseparable  concomitant  of  sovereign  power,  that  debts  and 
contracts  similar  to  those  which  existed  in  America  at  the  time  the 
war  with  Great  Britain  broke  out,  may,  in  virtue  of  the  eminent 
domain  or  right,  be  cancelled  and  destroyed.  “A  king  has  a greater 
right  in  the  goods  of  his  subjects  for  the  public  advantage  than  the 
proprietors  themselves.  And  when  the  exigency  of  the  State  re- 
quires a supply,  every  man  is  more  obliged  to  contribute  toward  it 
than  to  satisfy  his  creditors.  The  sovereign  may  discharge  a debtor 


6 


ARGUMENT  OF  PATRICK  HENRY 


from  the  obligation  of  paying,  either  for  a certain  time  or  forever.*^ 
What  language  can  be  more  expressive  than  this  ? Can  the  mind 
of  man  conceive  anything  more  comprehensive?  Rights  are  of 
two  sorts:  private  and  inferior,  or  eminent  and  superior,  such  as  the 
community  hold  over  the  persons  and  estates  of  its  members  for 
the  common  benefit.  The  latter  is  paramount  to  the  former.  A 
king  or  chief  of  a nation  has  a greater  right,  than  the  owner  him- 
self, over  any  property  in  the  nation.  The  individual  who  owns 
private  property  cannot  dispose  of  it,  contrary  to  the  will  of  his  sov- 
ereign, to  injure  the  public.  This  author  is  known  to  be  no  advo- 
cate for  tyranny,  yet  he  mentions  that  a king  has  a superior  power 
over  the  property  in  his  nation,  and  that,  by  virtue  thereof,  he  may 
discharge  his  subjects  forever  from  debts  which  they  owe  to  an 
enemy. 

3.  Extent  to  which  a sovereign,  in  time  of  war,  is  justi- 
fied IN  CONFISCATING  DEBTS. 

The  instance  which  our  author  derives  from  the  Roman  history 
affords  a striking  instance  of  the  length  to  which  the  necessities 
and  exigencies  of  a nation  will  warrant  it  to  go.  It  was  a juncture 
critical  to  the  Roman  affairs.  But  their  situation  was  not  mere 
critical  or  dangerous  than  ours  at  the  time  these  debts  were  con- 
fiscated. It  was  after  the  total  defeat  and  dreadful  slaughter  at 
Cannae,  when  the  State  was  in  the  most  imminent  danger.  Our 
situation  in  the  late  war  was  equally  perilous.  Every  consideration 
must  give  way  to  the  public  safety.  That  admirable  Roman  maxim, 
salus  populi  suprema  lex^  governed  that  people  in  every  emergency. 
It  is  a maxim  that  ought  to  govern  every  community.  It  was  not 
peculiar  to  the  Roman  people.  The  impression  came  from  the 
same  source  from  which  we  derive  our  existence.  Self-preserva- 
tion, that  great  dictate  implanted  in  us  by  nature,  must  regulate 
our  conduct;  we  must  have  a power  to  act  according  to  our  neces- 
sities, and  it  remains  for  human  judgment  to  decide  what  are  the 
proper  occasions  for  the  exercise  of  this  power.  Call  to  your  re- 
collection our  situation  during  the  late  arduous  contest.  Was  it 
not  necessary  in  our  day  of  trial  to  go  to  the  last  iota  of  human 
right  ? The  Romans  fought  for  their  altars  and  household  gods. 
By  these  terms  they  meant  everything  dear  and  valuable  to  men. 
Was  not  our  stake  as  important  as  theirs  ? But  many  other  nations 
engage  in  the  most  bloody  wars  for  the  most  trivial  and  frivolous 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


7 


causes.  If  other  nations  who  carried  on  wars  for  the  mere  point 
of  honor,  or  a punctilio  of  gallantry,  were  warranted  in  the  exer- 
cise of  this  power,  were  not  we  who  fought  for  everything  most  im 
estimable  and  valuable  to  mankind,  justified  in  using  it  ? Our 
finances  were  in  a more  distressing  situation  than  theirs  at  this  aw- 
ful period  of  our  existence.  Our  war  was  in  opposition  to  the 
most  grievous  oppression;  we  resisted,  and  our  resistance  was  ap- 
proved and  blessed  by  heaven.  The  most  illustrious  men  who 
have  considered  human  affairs,  when  they  have  revolved  human 
rights  and  considered  how  far  a nation  is  warranted  to  act  in  cases 
of  emergency,  declare  that  the  only  ingredient  essential  to  the 
rectitude  and  validity  of  its  measures  is,  that  they  be  for  the  public 
good.  I need  hardly  observe  that  the  confiscation  of  these  debts 
was  for  the  public  good. 

4.  Grotius  and  Vattel  on  the  subject  of  confiscation. 

Those  who  decided  it  were  constitutionally  enabled  to  deter- 
mine it.  Grotius  shows  that  you  have  not  only  power  over  the 
goods  of  your  enemies,  but,  according  to  the  exigency  of  affairs, 
you  may  seize  the  property  of  your  citizens. 

After  reading  a passage  from  Grotius  to  sustain  this  proposition,  he  continued: 

I read  these  authorities  to  prove  that  the  property  of  an  enemy 
is  liable  to  forfeiture,  and  that  debts  are  as  much  the  subject  of 
hostile  contests  as  tangible  property.  And  Vattel,  p.  484,  as  before 
mentioned,  pointedly  enumerates  rights  and  debts  among  such 
property  of  the  enemy  as  is  liable  to  confiscation.  To  this  last 
author  I must  frequently  resort  in  the  course  of  my  argument.  I 
put  great  confidence  in  him  from  the  weight  of  his  authority,  for 
he  is  universally  respected  by  all  the  wise  and  enlightened  of  man- 
kind, being  no  less  celebrated  for  his  great  judgment  and  knowl- 
edge than  for  his  universal  philanthropy.  One  of  his  first  prin- 
ciples of  the  law  of  nations  is,  a perfect  equality  of  rights  among 
nations;  that  each  nation  ought  to  be  left  in  the  peaceable  enjoy- 
ment of  that  liberty  it  has  derived  from  nature.  I refer  your  honors 
to  his  preliminary  discourse  from  6th  to  the  12th  page;  and  as  it 
will  greatly  elucidate  the  subject  and  tend  to  prove  the  position  I 
have  attempted  to  support,  I will  read  sections  17,  18,  19  and  20 
of  this  discourse. 

Here  Mr.  Henry  read  the  sections  referred  to.  He  then  continued  •* 


s 


ARGUMENT  OF  PATRICK  HENRY 


5.  Effect  of  the  revolution  on  British  debts. — Greatness 

OF  America. 

When  the  war  commenced,  these  things,  called  British  debts, 
lost  their  quality  of  external  obligation  and  became  matters  of  in- 
ternal obligation,  because  the  creditors  had  no  right  of  constraint 
over  the  debtors.  They  were  before  the  war  matters  of  perfect 
external  obligation,  accompanied  by  a right  of  constraint;  but  the 
war  having  taken  away  this  right  of  constraint  over  the  debtors, 
they  were  changed  into  an  internal  obligation  binding  the  con- 
science only.  For  it  will  not  surely  be  denied  that  the  creditor  lost 
the  right  of  constraint  over  his  debtor. 

From  the  authority  of  this  respectable  author,  therefore,  from 
the  clearest  principles  of  the  laws  of  nature  and  nations,  these 
debts  became  subject  to  forfeiture  or  remission.  Those  authors 
state,  in  language  as  emphatic  and  nervous  as  the  human  mind  can 
conceive  or  the  human  tongue  can  utter,  that  independent  nations 
have  the  power  of  confiscating  the  property  of  their  enemies;  and 
so  had  this  gallant  nation.  America,  being  a sovereign  and  com- 
plete nation  in  all  its  forms  and  departments,  possessed  all  the 
rights  of  the  most  powerful  and  ancient  nations.  Respecting  the 
power  of  legislation,  it  was  a nation  complete  and  without  human 
control.  Respecting  public  justice,  it  was  a nation  blessed  by 
heaven,  with  the  experience  of  past  times;  not  like  those  nations 
whose  crude  systems  of  jurisprudence  originated  in  the  ages  of 
barbarity  and  ignorance  of  human  rights.  America  was  a sovereign 
nation  when  her  sons  stepped  forth  to  resist  the  unjust  hand  of  op- 
pression and  declared  themselves  independent.  The  consent  of 
Great  Britain  was  not  necessary  (as  the  gentlemen  on  the  other 
side  urge)  to  create  us  a nation.  Yes,  sir,  we  were  a nation  long 
before  the  monarch  of  that  little  island  in  the  Atlantic  ocean  gave 
his  puny  assent  to  it.  America  was  long  before  that  time  a great 
and  gallant  nation.  In  the  estimation  of  other  nations  we  were  so; 
the  beneficent  hand  of  heaven  enabled  her  to  triumph  and  secured 
to  her  the  most  sacred  rights  mortals  can  enjoy.  When  these  il- 
lustrious authors,  these  friends  to  human  nature,  these  kind  in- 
structors of  human  errors  and  frailties ' contemplate  the  obligations 
and  corresponding  rights  of  nations,  and  define  the  internal  right 
which  is  without  constraint  and  not  binding,  do  they  not  under- 
stand such  rights  as  these  which  the  British  creditors  now  claim  ? 

* In  the  second  argument,  he  eulogized  the  writers  on  the  laws  of  nations 
as  “benevolent  spirits  who  held  up  the  torch  of  science  to  a benighted  world,’* 


ON  THE  RIGHT  TO  CONFISCATE  BRITLSH  DEBTS. 


9 


Here  this  man  tells  us  what  conscience  says  ought  to  be  done,  and 
what  is  compulsory.  These  British  debts  must  come  within  the 
grasp  of  human  power,  like  all  other  human  things.  They  ceased 
to  have  that  external  quality,  and  fell  into  that  mass  of  power  which 
belonged  to  our  legislature  by  the  law  of  nations. 

6.  The  law  of  custom  only  binding  on  nations  adopting  it. 

But  we  are  told  that,  admitting  this  to  be  true  in  the  fullest 
latitude,  yet  the  customary  law  of  Europe  is  against  the  exercise  of 
this  power  of  confiscation  of  debts,  in  support  of  which  position 
they  rely  on  what  is  added  by  Vattel,  p.  484.  Let  us  examine  what 
he  says:  “The  sovereign  has  naturally  the  same  right  over  what 
his  subjects  may  be  indebted  to  enemies;  therefore  he  may  confis- 
cate debts  of  this  nature  if  the  term  of  payment  happen  in  the  time 
of  war,  or  at  least  he  may  prohibit  his  subjects  from  paying  while 
the  war  lasts.  But  at  present,  in  regard  to  the  advantage  and 
safety  of  commerce,  all  the  sovereigns  of  Europe  have  departed 
from  this  rigor.  And  as  this  custom  has  generally  been  received, 
he  who  should  act  contrary  to  it  would  injure  the  public  faith;  for 
strangers  trusted  his  subjects  only  from  a firm  persuasion  that  the 
general  custom  would  be  observed.”  Excellent  man!  and  excel- 
lent sentiments!  The  principle  cannot  be  denied  to  be  good;  but 
when  you  apply  it  to  the  case  before  the  court,  does  it  warrant  their 
conclusions  ? The  author  says,  that  although  a nation  has  a right 
to  confiscate  debts  due  by  its  people  to  an  enemy,  yet  at  present 
the  custom  of  Europe  is  contrary.  It  is  not  enough  for  this  author 
to  tell  us  that  this  custom  is  contrary  to  the  right.  He  admits  the , 
right.  Let  us  see  whether  this  custom  has  existence  here.  Vattel, 
having  spoken  of  the  necessary  law  of  nations,  which  is  immutable, 
and  the  obligations  whereof  are  indispensable,  thus  proceeds  to  dis- 
tinguish the  several  other  kinds  of  natural  law  in  the  same  pre- 
liminary discourse: 

“ Certain  maxims  and  customs  consecrated  by  long  use,  and  ob- 
served by  nations  between  each  other  as  a kind  of  law,  form  this 
customary  law  of  nations,  or  the  custom  of  nations.  This  law  is 
founded  on  a tacit  consent,  or,  if  you  will,  on  a tacit  convention  of 
the  nations  that  observe  it,  with  respect  to  each  other.  Whence  it 
appears  that  it  is  only  binding  to  those  nations  that  have  adopted 
it,  and  that  is  not  universal,  any  more  than  conventional  laws.  It 
must  be  here  also  observed  of  this  customary  law,  that  the  partic- 
ulars relating  to  it  do  not  belong  to  a systematic  treatise  on  the  law 
of  nations,  but  that  we  ought  to  confine  ourselves  to  the  giving  a 
general  theory  of  it,  that  is,  to  the  rules  which  here  ought  to  be 


10 


ARGUMENT  OF  PATRICK  HENRY 


observed,  as  well  with  respect  to  its  effects  as  in  relation  to  the 
matter  itself;  and  in  this  last  respect  these  rules  will  serve  to  dis- 
tinguish the  lawful  and  innocent  customs  from  those  that  are  un- 
just and  illegal ! 

“ When  a custom  is  generally  established,  either  between  all  the 
polite  nations  in  the  world,  or  only  between  those  of  a certain  con- 
tinent, as  of  Europe  for  example,  or  those  who  have  a more  fre- 
quent correspondence;  if  that  custom  is  in  its  own  nature  indiffer- 
ent, and,  much  more,  if  it  be  a wise  and  useful  one,  it  ought  to  be 
obligatory  on  all  those  nations  who  are  considered  as  having  given 
their  consent  to  it.  And  they  are  bound  to  observe  it,  with  respect 
to  each  other,  while  they  have  not  expressly  declared  that  they  will 
not  adhere  to  it.  But  if  that  custom  contains  anything  unjust  or 
illegal,  it  is  of  no  force,  and  every  nation  is  under  an  obligation  to 
abandon  it,  nothing  being  able  to  oblige  or  permit  a nation  to  vio- 
late a natural  law. 

“These  three  kinds  of  the  law  of  nations,  voluntary,  conven- 
tional and  customary,  together,  compose  the  positive  law  of  nations; 
for  they  all  proceed  from  the  volition  of  nations:  the  voluntary 
law  from  their  presumed  consent,  the  conventional  law  from  an 
express  consent,  and  the  customary  law  from  a tacit  consent;  and 
as  there  can  be  no  other  manner  of  deducing  any  law  from  the  will 
of  nations,  there  are  only  these  three  kinds  of  the  positive  law  of 
nations.”  * 

This  excellent  author,  after  having  stated  the  voluntary  law  of 
nations  to  be  the  result  of  the  equality  of  nations,  and  the  conven- 
tional law  to  be  particular  compacts  or  treaties,  binding  only  on 
the  contracting  parties,  declares  that  the  customary  law  of  nations 
is  only  binding  to  those  nations  that  have  adopted  it;  that  it  is  a 
particular  and  not  a universal  law;  that  it  applies  only  to  distinct 
* nations.  The  case  of  Alexander  and  the  Thebans  is  founded  on 
the  general  law  of  nations,  applicable  to  nations  at  war.  It  is 
enough  for  me,  then,  to  show  that  America,  being  at  war,  was  en- 
titled to  the  privilege  of  national  law. 

7.  The  law  of  custom  prevailing  in  Europe  not  binding 

IN  America. 

But,  says  Vattel,  the  present  state  of  European  refinement  con- 
trols the  general  law,  of  which  he  had  been  before  speaking.  We 
know  that  the  customary  law  of  nations  can  only  bind  those  who 
are  parties  to  the  custom.  In  the  year  1776,  when  America  an- 
nounced her  will  to  be  free,  or  in  the  year  1777,  when  the  law  con- 
cerning British  debts  passed,  was  there  a customary  law  of  America 


• Vattel,  pp.  II  and  12. 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS.  11 


to  this  effect  ? Or  were  the  customary  laws  of  Europe  binding  on 
America?  Were  we  a party  to  any  such  customary  law?  Was 
there  anything  in  our  Constitution  or  laws  which  tied  up  our  hands  ? 
No,  sir.  To  make  this  customary  law  obligatory,  the  assent  of  all 
the  parties  to  be  bound  by  it  is  necessary.  There  must  be  an  inter- 
change of  it.  It  is  not  for  one  nation  or  community  to  say  to  an- 
other, you  are  bound  by  this  law,  because  our  kingdom  approves  of 
it.  It  must  not  only  be  reciprocal  in  its  advantages  and  principles, 
but  it  must  have  been  reciprocal  in  its  exercise.  Virginia  could 
not,  therefore,  be  bound  by  it.  Let  us  see  whether  it  could  be  a 
hard  case  on  the  British  creditors  that  this  customary  law  of  na- 
tions did  not  apply  in  their  favor.  Were  these  debts  contracted 
from  a persuasion  of  its  observance  ? Did  the  creditors  trust  to 
this  customary  law  of  nations  ? No,  sir;  they  trusted  to  what  they 
thought  as  firm,  the  statute  and  common  law  of  England.  Victori- 
ous and  successful  as  their  nation  had  lately  been,  when  they,  in 
their  pride  and  inconsiderate  self-confidence,  stretched  out  the 
hand  of  oppression,  their  subjects  placed  no  reliance  on  the  cus- 
toms of  particular  nations.  They  put  confidence  in  those  barriers 
of  right  which  were  derived  from  their  own  nation.  Their  reli- 
ance was,  that  the  tribunals  established  in  this  country,  under  the 
same  royal  authority  as  in  England,  would  do  them  justice.  If  we 
were  not  willing,  they  possessed  the  power  of  compelling  us  to  do 
them  justice. 

These  debts  having,  therefore,  not  been  contracted  from  any 
reliance  on  the  customary  law  of  nations,  were  they  contracted 
from  a regard  “ to  the  rights  of  commerce  ? " from  a view  of 
promoting  the  commerce  of  those  little  things  called  colonies? 
This  regard  could  not  have  been  the  ground  they  were  contracted 
on,  for  their  conduct  evinced  that  they  wished  to  take  the  right  of 
commerce  from  us.  What  other  ingredient  remains  to  show  the 
operation  of  this  custom  in  their  favor  ? The  book  speaks  of 
strangers  trusting  subjects  of  a different  nation,  from  a reliance  on 
the  observance  of  the  customary  law.  The  fact  here  was,  that 
fellow  subjects  trusted  us  on  the  footing  just  stated;  trusting  to  the 
existing  compulsory  process  of  law,  not  relying  on  a passive  inert 
custom.  A fearful,  plodding,  sagacious  trader  would  not  rely  on 
so  flimsy,  so  uncertain  a dependence.  Something  similar  to  what 
he  thought  positive  satisfaction  he  relied  on.  Were  we  not  sub- 
ject to  the  same  king  ? The  cases  are  then  at  variance.  Restates 
the  custom  to  exist  for  the  advantage  of  commerce,  and  that  a de- 


12 


ARGUMENT  OF  PATRICK  HENRY 


parture  from  it  would  injure  the  public  faith.  Public  faith  is  in 
this  case  out  of  the  question.  The  public  faith  was  not  pledged; 
it  could  not,  therefore,  be  injured.  I have  already  read  to  your 
honors  from  the  nth  page  of  the  preliminary  discourse  of  Vattel, 
“ that  the  customary  law  of  nations  is  only  binding  on  those  who 
have  adopted  it,  and  that  it  is  not  universal  any  more  than  conven 
tional  law.”  It  is  evident,  we  could  not  be  bound  by  any  conven- 
tion or  treaty  to  which  we,  ourselves,  were  not  a party;  and  from 
this  authority  it  is  equally  obvious  that  we  could  not  be  bound  by 
any  customary  law  to  which  we  were  not  parties. 

8.  America  an  independent  nation  long  prior  to  1783. 

I think,  therefore,  with  great  submission  to  the  court,  that  the 
right  for  which  I contended,  that  is,  that  in  common  wars  between 
independent  nations  either  of  the  contending  parties  has  a right  to 
confiscate  or  remit  debts  due  by  its  people  to  the  enemy,  is  not 
shaken  by  the  customary  law  of  nations,  as  far  as  it  regards  us, 
because  the  custom  could  not  affect  us.  But,  gentlemen,  say  we 
were  not  completely  independent  till  the  year  1783!  To  take  them 
on  their  own  ground,  their  arguments  will  fail  them.  There  is  a 
customary  law  which  will  operate  pretty  strongly  on  our  side  of  the 
question.  What  were  the  inducements  of  the  debtor  ? On  what 
did  the  American  debtor  rely  ? Sir,  he  relied  for  protection  on 
that  system  of  common  and  statute  law  on  which  the  creditors  de- 
pended. Was  he  deceived  in  that  reliance  ? That  he  was  most 
miserably  deceived,  I believe  will  not  admit  of  a doubt.  The  cus- 
tomary law  of  nations  will  only  apply  to  distinct  nations  mutually 
consenting  thereto.  When  tyranny  attempted  to  rivet  her  chains 
upon  us,  and  we  boldly  broke  them  asunder,  we  were  remitted  to 
that  amplitude  of  freedom  which  the  beneficent  hand  of  nature 
gave  us.  We  were  not  bound  by  fetters  which  are  of  benefit  to 
one  party,  while  they  are  destructive  to  the  other.  Would  it  be 
proper  that  we  should  be  bound  and  they  unrestrained  ? Vattel, 
book  the  3d,  ch.  8,  sec.  137,  says,  that  “ the  lawful  end  gives  a true 
right  only  to  those  means  which  are  necessary  for  obtaining  such 
end.  Whatever  exceeds  this  is  censured  by  the  laws  of  nature  as 
faulty,  and  will  be  condemned  at  the  tribunal  of  conscience. 
Hence  it  is  that  the  right  to  such  or  such  acts  of  hostility  varies 
according  to  their  circumstances.  What  is  just  and  perfectly  inno- 
cent in  a war,  in  one  particular  situation,  is  not  always  so  in  an- 
other. Right  goes  hand  in  hand  with  necessity  and  the  exigency 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


13 


of  the  case,  but  never  exceeds  it.”  This,  sir,  is  the  first  dictate  of 
nature  and  the  practice  of  nations;  and  if  your  misfortunes  and 
distresses  should  be  sad  and  dreadful,  you  are  let  loose  from  those 
common  restraints  which  may  be  proper  on  common  occasions,  in 
order  to  preserve  the  great  rights  of  human  nature. 

9.  The  acts  of  confiscation  warranted  by  necessity. 

This  is  laid  down  by  that  great  writer  in  clear  and  unequivocal 
terms.  If,  then,  sir,  it  be  certain,  from  a recurrence  to  facts,  that 
it  was  necessary  for  America  to  seize  on  British  property,  this  book 
warrants  the  legislature  of  this  State  in  passing  those  confiscating 
and  prohibitory  laws.  I need  only  refer  to  your  recollection  for 
our  pressing  situation  during  the  late  contest,  and  happy  am  I that 
this  all-important  question  comes  on  before  the  heads  of  those  who 
were  actors  in  the  great  scene  are  laid  in  the  dust.  An  uninformed 
posterity  would  be  unacquainted  with  the  awful  necessity  which 
impelled  us  on.  If  the  means  were  within  reach,  we  were  war- 
ranted by  the  laws  of  nature  and  nations  to  use  them.  The  fact 
was,  that  we  were  attacked  by  one  of  the  most  formidable  nations 
under  heaven;  a nation  that  carried  terror  and  dread  with  its 
thunder  to  both  hemispheres.  Our  united  property  enabled  us  to 
look  in  the  face  that  mighty  people.  Dared  we  to  have  gone  in 
opposition  to  them  bound  hand  and  foot  ? Would  we  have  dared 
to  resist  them  fettered  ? for  we  should  have  been  fettered  if  we  had 
been  deprived  of  so  considerable  a part  of  our  little  stock  of  na- 
tional resources.  In  that  most  critical  and  dangerous  emergency, 
our  all  was  but  a little  thing.  Had  we  a treasury,  an  exchequer  ? 
Had  we  commerce  ? Had  we  any  revenue  ? Had  we  anything 
from  which  a nation  could  draw  wealth  ? No,  sir.  Our  credit  be- 
came the  scorn  of  our  foes.  However,  the  efforts  of  certain  patri- 
otic characters  (there  were  not  a few  of  them,  thank  heaven,)  gave 
us  credit  among  our  own  people.  But  we  had  not  a farthing  to 
spare.  We  were  obliged  to  go  on  a most  grievous  anticipation,  the 
weight  of  which  we  feel  at  this  day.  Recur  to  our  actual  situation 
and  the  means  we  had  of  defending  ourselves.  The  actual  situation 
of  America  is  described  here,  where  this  author  says,  that  right 
goes  hand  in  hand  with  necessity.”  The  necessity  being  great  and 
dreadful,  you  are  warranted  to  lay  hold  of  every  atom  of  money 
within  your  reach,  especially  if  it  be  the  money  of  your  enemies. 
It  is  prudent  and  necessary  to  strengthen  yourselves  and  weaken 
your  enemies.  Vattel,  book  3d,  ch.  8,  sec.  138,  says:  “The  busi- 


14 


ARGUMENT  OF  PATRICK  HENRY 


ness  of  a just  war  being  to  suppress  violence  and  injustice,  it  gives 
a right  to  compel,  by  force,  him  who  is  deaf  to  the  voice  of  justice. 
It  gives  a right  of  doing  against  the  enemy  whatever  is  necessary 
for  weakening  him,  for  disabling  him  from  making  any  further  re- 
sistance in  support  of  his  injustice;  and  the  most  effectual,  the 
most  proper  methods  may  be  chosen,  provided  they  have  nothing 
odious,  be  not  unlawful  in  themselves,  or  exploded  by  the  law  of 
nature."  Here  let  me  pause  for  a moment,  and  ask  whether  it  be 
odious  in  itself,  or  exploded  by  the  law  of  nature,  to  seize  those 
debts  ? 

No,  because  the  money  was  taken  from  the  very  offenders.  We 
fought  for  the  great,  unalienable,  hereditary  rights  of  human  na- 
ture. An  unwarrantable  attack  was  made  upon  us;  an  attack,  not 
only  not  congenial  with  motherly  or  parental  tenderness,  but  in- 
compatible with  the  principles  of  humanity  or  civilization.  Our 
defense,  then,  was  a necessary  one.  What  says  Vattel,  book  3d, 
ch.  8,  sec.  136:  “The  end  of  a just  war  is  to  revenge  or  prevent 
injury;  that  is,  to  procure  by  force  the  justice  which  cannot  other- 
wise be  obtained;  to  compel  an  unjust  person  to  repair  an  injury 
already  done,  or  to  give  securities  against  any  wrong  threatened  by 
him.  On  a declaration  of  war,  therefore,  this  nation  has  a right  of 
doing  against  the  enemy  whatever  is  necessary  to  this  justifiable 
end  of  bringing  him  to  reason  and  obtaining  justice  and  security 
from  him."  We  have  taken  nothing  in  this  necessary  defense,  but 
from  the  very  offenders — those  who  unjustly  attacked  us;  for  we 
had  a right  of  considering  every  individual  of  the  British  nation  as 
an  enemy.  This  I prove  by  the  same  great  writer,  p.  519,  sec.  139, 
of  the  same  book:  “An  enemy  attacking  me  unjustly  gives  an  un- 
doubted right  of  repelling  his  violence;  and  he  who  opposes  me  in 
arms,  when  I demand  only  my  right,  becomes  himself  the  real 
aggressor  by  his  unjust  resistance.  He  is  the  first  author  of  the 
violence,  and  obliges  me  to  make  use  of  force  for  securing  myself 
against  the  wrongs  intended  me  either  in  my  person  or  possessions; 
for  if  the  effects  of  this  force  proceed  so  far  as  to  take  away  his 
life,  he  owes  the  misfortune  to  himself,  for  if,  by  sparing  him,  I 
should  submit  to  the  injury,  the  good  would  soon  become  the  prey 
of  the  wicked.  Hence  the  right  of  killing  enemies  in  a just  war  is 
derived;  when  their  resistance  cannot  be  suppressed,  when  they  are 
not  to  be  reduced  by  milder  methods,  there  is  a right  of  taking 
away  their  life.  Under  the  name  of  enemies,  as  we  have  already 
shown,  are  comprehended  not  only  the  first  author  of  the  war,  but 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


15 


likewise  all  who  join  him  and  fight  for  his  cause.”  Thus  I think 
the  first  part  of  my  position  confirmed  and  unshaken:  that,  in  com- 
mon wars,  a nation  not  restrained  by  the  customary  law  of  nations, 
has  a right  to  confiscate  debts. 

lo.  Distinction  between  common  war  and  revolution. 

From  this  I will  go  on  to  the  other  branch  of  my  position:  that 
if,  in  common  wars,  debts  be  liable  to  forfeiture,  a fortiori^  must 
they  be  so  in  a revolution  war.  Let  me  contrast  the  late  war  with 
wars  in  common.  According  to  those  people  called  kings,  wars  in 
common  are  systematic  and  produced  for  trifles,  for  not  conform- 
ing to  imaginary  honors,  because  you  have  not  lowered  your  flag 
before  him  at  sea;  or  for  a supposed  affront  to  the  person  of  an 
ambassador.  Nations  are  set  by  the  ears,  and  the  most  horrid  de- 
vastations are  brought  on  mankind  for  the  most  frivolous  causes. 
If  then,  when  small  matters  are  in  contest,  debts  be  forfeitable, 
what  must  have  accrued  to  us  as  engaged  in  the  late  revolution 
war — a war  commenced  in  attainder,  perfidy  and  confiscation  ? If 
we  take  with  us  this  great  principle  of  Vattel,  that  right  goes  in 
hand  with  necessity,  and  consider  the  peculiar  situation  of  the 
American  people,  we  will  find  reason  more  than  sufficient  to  give 
us  a right  of  confiscating  those  debts. 

The  most  striking  peculiarity  attended  the  American  war.  In 
the  first  of  it  we  were  stripped  of  every  municipal  right.  Rights 
and  obligations  are  correspondent,  co-extensive  and  inseparable; 
they  must  exist  together  or  not  at  all.  We  were,  therefore,  when 
stripped  of  all  our  municipal  rights,  clear  of  every  municipal  obli- 
gation, burden,  and  onerous  engagement.  If,  then,  the  obligation 
be  gone,  what  is  become  of  the  correspondent  right  ? They  are 
mutually  gone.  The  case  of  sovereign  and  independent  nations  at 
war  is  far  different,  because  there  private  right  is  respected  and 
domestic  asylum  held  sacred.  Was  it  the  case  in  our  war  ? No, 
sir;  daggers  were  planted  in  your  chambers,  and  mischief,  death 
and  destruction  might  meet  you  at  your  fireside. 

II.  Picture  of  the  horrors  of  the  American  revolution. 

There  is  an  essential  variance  between  the  late  war  and  common 
wars.  In  common  wars  children  are  not  obliged  to^  fight  against 
their  fathers,  nor  brothers  against  brothers,  nor  kindred  against 
kindred.  Our  men  were  compelled,  contrary  to  the  most  sacred 
ties  of  humanity,  to  shed  the  blood  of  their  dearest  connexions. 


16 


ARGUMENT  OF  PATRICK  HENRA" 


In  common  wars,  contending  parties  respect  municipal  rights,  and 
leave,  even  to  those  they  invade,  the  means  of  paying  debts  and 
complying  with  obligations;  they  touch  not  private  property.  For 
example,  when  a British  army  lands  in  France,  they  plunder 
nothing;  they  pay  for  what  they  have,  and  respect  the  tribunals  of 
justice,  unless  they  have  a mind  to  be  called  a savage  nation. 
Were  we  thus  treated  ? Were  we  permitted  to  exercise  industry 
and  to  collect  debts  by  which  we  might  be  enabled  to  pay  British 
creditors  ? Had  we  a power  to  pursue  commerce  ? No,  sir.  What 
became  of  our  agriculture  ? Our  inhabitants  were  mercilessly  and 
brutally  plundered,  and  our  enemies  professed  to  maintain  their 
army  by  those  means  only.  Our  slaves  carried  away,  our  crops 
burnt,  a cruel  war  carried  on  against  our  agriculture — disability  to 
pay  debts  produced  by  pillage  and  devastation,  contrary  to  every 
principle  of  national  law.  From  that  series  of  plenty  in  which  we 
had  been  accustomed  to  live  and  to  revel,  we  were  plunged  into 
every  species  of  human  calamity  : our  lives  attacked,  charge  of 
rebels  fixed  upon  us,  confiscation  and  attainder  denounced  against 
the  whole  continent,  and  he  that  was  called  king  of  England  sat 
judge  upon  our  case.  He  pronounced  his  judgment;  not  like  those 
to  whom  poetic  fancy  has  given  existence;  not  like  him  who  sits  in 
the  infernal  regions  and  dooms  to  the  Stygian  lake  those  spirits 
who  deserve  it,  because  he  spares  the  innocent  and  sends  some  to 
the  fields  of  Elysium;  not  like  him  who  sat  in  ancient  imperial 
Rome  and  wished  the  people  had  but  one  neck,  that  he  might  at 
one  blow  strike  off  their  heads  and  spare  himself  the  trouble  of 
carnage  and  massacre,  because  one  city  would  have  satisfied  his 
vengeance;  not  like  any  of  his  fellow-men! — for  nothing  would  sati- 
ate his  sanguinary  ferocity  but  the  indiscriminate  destruction  of  the 
whole  continent,  involving  the  innocent  with  the  guilty.  Yes;  he 
sat  in  judgment  with  his  coadjutors,  and  pronounced  proscription, 
attainder  and  forfeiture  against  men,  women,  and  even  children  at 
the  breast!  Is  not  this  description  pointedly  true  in  all  its  parts? 
And  who  were  his  coadjutors  and  executioners  in  this  strange  court 
of  judicature  ? Like  the  fiends  of  poetic  imagination — Hessians, 
Indians  and  Negroes  were  his  coadjutors  and  executioners.  Is 
there  anything  in  this  sad  detail  of  offenses  which  is  unfounded  ? 
anything  not  enforced  by  the  act  of  parliament  against  America  ? 
We  were  thereby  driven  out  of  their  protection  and  branded  by  the 
epithet  “rebels!”  The  term  rebel  may  not  now  appear  in  all  its 
train  of  horrid  consequences.  We  know  that  when  a person  is 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


17 


called  rebel  by  that  government,  his  goods  and  life  are  forfeited, 
and  his  very  blood  pronounced  to  be  corrupted,  and  the  severity 
of  the  punishment  entailed  on  his  posterity.  To  whom  may  we 
apply  for  the  verity  of  this  ? The  jurisprudence  and  history  of  that 
nation  prove  that,  when  they  speak  of  rebels,  nothing  but  blood 
will  satisfy  them.  Is  there  nothing  hideous  in  this  part  of  the  por- 
trait ? It  is  unparalleled  in  the  annals  of  mankind.  Though  I 
have  respect  for  individuals  of  that  nation,  my  duty  constrains  me 
to  speak  thus. 

When  we  contemplate  this  mode  of  warfare,  and  the  sentiments 
of  the  writers  on  natural  law  on  this  subject,  we  are  justified  in 
saying  that,  in  this  revolution  war,  we  had  a right  to  consider  Brit- 
ish debts  as  subject  to  confiscation,  and  to  seize  the  property  of 
those  who  originated  that  war.  As  to  the  injuries  done  to  agricul- 
ture, they  appear  in  a diminutive  view  when  compared  to  the  in- 
juries and  indignities  offered  to  persons  and  mansions  of  abode. 
Sir,  from  your  seat  you  might  have  seen  instances  of  the  most 
grievous  hostility:  not  only  private  property  wantonly  pillaged,  but 
men,  women  and  children  dragged  publicly  from  their  habitations, 
and  indiscriminately  devoted  to  destruction.  The  rights  of  human- 
ity were  sacrificed!  We  were  then  deprived  not  only  of  the  benefits 
of  municipal,  but  natural  law.  If  there  shall  grow  out  of  these 
considerations  a palpable  disability  to  pay  those  debts,  I ask  if  the 
claim  be  just  ? For  that  disability  was  produced  by  those  excesses, 
by  those  very  men  who  come  on  us  now  for  payment.  Here  give 
me  leave  to  say  that  they  sold  us  a bad  title  in  whatever  they  sold 
us,  in  real  as  well  as  in  personal  property. 

12.  England,  by  withdrawing  her  protection,  destroyed 

TITLE  IN  ALL  PROPERTY. 

Describe  the  nature  of  a debt:  it  is  an  engagement  or  promise 
to  pay,  but  it  must  be  for  a valuable  consideration.  If  this  be 
clear,  was  not  the  title  to  whatever  property  they  sold  us,  bad  in 
every  sense  of  the  word  when  the  war  followed  ? What  can  add 
value  to  property  ? Force.  Notwithstanding  the  equity  and  fair- 
ness of  the  debt  when  incurred,  if  the  security  of  the  property  re- 
ceived was  afterward  destroyed,  the  title  has  proved  defective. 
Suppose  millions  were  contracted  for  and  received,  those  millions 
give  you  no  advantage  without  force  to  protect  them.  This  neces- 
sary protection  is  withdrawn  by  the  very  men  who  were  bound  to 


18 


ARGUMENT  OF  PATRICK  HENRY 


nor  other  property,  are  worth  a shilling  without  protecting  force. 
This  title  was  destroyed,  when  the  act  of  parliament,  putting  us  out 
of  their  protection,  passed  against  America.  I say,  sir,  the  title 
was  destroyed  by  the  very  offenders  who  come  here  now  and  de- 
mand payment.  Justice  and  equity  cancel  the  obligation  as  to  the 
price  that  was  to  be  given  for  it,  because  the  tenure  is  destroyed 
and  the  effects  purchased  have  no  value.  Such  a claim  is  unsup- 
ported by  the  plainest  notions  of  right  and  wrong.  For  this  long 
catalogue  of  offenses  committed  against  the  citizens  of  America, 
every  individual  of  the  British  nation  is  accountable.  How  are 
you  to  be  compensated  for  those  depredations  on  persons  and 
property  ? Are  you  to  go  to  the  kingdom  of  England  to  find  the 
very  individual  who  did  you  the  outrage,  and  demand  satisfaction 
of  him  ? To  tell  you  of  such  a remedy  as  this,  is  adding  insult  to 
injury.  Every  individual  is  chargeable  with  national  offenses. 

Mr.  Henry  cited  Vattel  to  maintain  this  proposition.  He  then  proceeded  : 

These  observations  of  Vattel  amount  to  this:  that  a king  or 
conductor  of  a nation  is  considered  as  a moral  person,  by  means 
of  w'hom  the  nation  acquires  or  loses  its  rights,  and  subjects  itself 
to  penalties.  The  individuals,  and  the  nation  which  they  compose, 
are  one.  I will,  therefore,  take  it  for  granted,  that  whatever  vio- 
lences and  excesses  were  committed  on  this  continent,  are  charge- 
able to  the  plaintiff  in  this  very  action.  Recollect  our  distressed 
situation.  We  had  no  exchequer,  no  finances,  no  army,  no  navy, 
no  common  means  of  defense.  Our  necessity — dire  necessity — 
compelled  us  to  throw  aside  those  rules  which  respect  private  prop- 
erty, and  to  make  impresses  on  our  own  citizens  to  support  the 
war.  Right  and  necessity  being  co-extensive,  we  were  compelled 
to  exert  a right  the  most  eminent  over  the  whole  community.  The 
saliis  popidi  demanded  what  we  did.  If  we  had  a right  to  disre- 
gard the  legal  fences  drawn  round  the  property  of  our  citizens,  had 
we  not  a greater  right  to  take  British  property  ? 

13.  The  issuing  of  paper  money  by  the  colonies  compelled 

BY  NECESSITY. 

Another  peculiarity  contributes  to  aid  our  defense.  The  w^ant 
of  an  exchequer  obliged  us  to  emit  paper  money,  and  compel  our 
citizens  to  receive  it  for  gold.  In  the  ears  of  some  men  this  sounds 
harshly.  But  they  are  young  men,  who  do  not  know  and  feel  the 
irresistible  necessity  that  urged  us.  Would  your  armies  have  been 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


19 


raised,  clothed,  maintained  or  kept  together  without  paper  money  ? 
Without  it,  the  war  would  have  stood  still,  resistance  to  tyranny 
would  have  stopped,  and  despotism,  with  all  its  horrid  train  of  ap- 
purtenances, must  have  depressed  your  country.  We  compelled 
the  people  to  receive  it  in  payment  of  all  debts;  we  induced  and 
invited  them  (if  we  did  not  compel  them)  to  put  it  into  the  treasury 
as  a complete  discharge  from  their  debts.  Sir,  I trust  I shall  not 
live  to  see  the  day  when  the  public  councils  of  America  will  give 
ground  to  say  that  this  was  a State  trick,  contrived  to  delude  and 
defraud  the  citizens.  What  must  it  be  ostensibly,  when,  by  the 
compact  of  your  nation,  they  had  publicly  bound  and  pledged 
themselves  that  it  was  and  should  be  money,  if  afterward,  in  the 
course  of  human  events,  when  temptations  present  themselves,  they 
shall  declare  that  it  is  not  money  ? Sir,  the  honest  planter  is  un- 
skilled in  political  tricks  and  deceptions.  His  interest  ought  never 
to  be  sacrificed.  The  law  is  his  guide;  the  law  compelled  him  to 
receive  it,  and  his  countrymen  would  have  branded  him  with  the 
name  of  enemy  if  he  had  refused  it.  The  laws  of  the  country  are 
as  sacred  as  the  imaginary  sanctity  of  British  debts.  Sir,  national 
engagements  ought  to  be  held  sacred;  the  public  violation  of  this 
solemn  engagement  will  destroy  all  confidence  in  the  government 
If  you  depart  from  the  national  compact  one  iota,  you  give  a 
dangerous  precedent  which  may  imperceptibly  and  gradually  intro- 
duce the  most  destructive  encroachment  on  human  rights. 

I will  beg  leave  here  to  dissent  from  the  position  of  the  gentle- 
men on  the  other  side,  which  denied  that  we  were  a people  till  our 
enemies  were  pleased  to  say  we  were  so.  That  we  were  a people, 
and  had  a right  to  do  everything  which  a great  and  a royal,  nay^ 
an  imperial  people  could  do,  is  clear  and  indisputable.  Though 
under  the  humble  appearance  of  republicanism,  our  government 
and  national  existence,  when  examined,  are  as  solid  as  a rock,  not 
resting  on  the  mere  fraud  and  oppression  of  rulers,  nor  the  credul- 
ity nor  barbarous  ignorance  of  the  people,  but  founded  on  the 
consent  and  conviction  of  enlightened  human  nature.  That  we 
had  every  right  that  completely  independent  nations  can  have,  will 
be  satisfactorily  proved  to  your  honors  by  again  referring  to  Vattel. 

Here  Mr.  Henry  read  a passage  from  Vattel,  the  effect  of  which  is,  that 
during  a civil  war  the  parties  acknowledging  no  common  judge  on  earth  are  to 
be  considered  as  two  distinct  people,  and  to  govern  themselves  in  the  conduct  of 
the  war  by  the  general  laws  of  nations.  He  then  proceeded  : 


20 


ARGUMENT  OF  PATRICK  HENRY 


Here  then,  sir,  is  proof  abundant,  that,  before  the  acknowledg- 
ment of  American  independence  by  Great  Britain,  we  had  a right 
to  be  considered  as  a nation,  because  on  earth  we  had  no  common 
superior  to  give  a decision  of  the  dispute  between  us  and  our  sov- 
ereign. After  declaring  ourselves  a sovereign  people,  we  had  every 
right  a nation  can  claim  as  an  independent  community.  But  the 
gentlemen  on  the  other  side  greatly  rely  upon  this  principle,  that  a 
contract  cannot  be  dissolved  without  the  consent  of  all  the  contract- 
ing parties;  the  inference  is,  that  the  consent  of  the  king  of  Great 
Britain  was  necessary  to  the  dissolution  of  the  government. 
Tyranny  has  too  often  and  too  successfully  riveted  his  chains  to 
warrant  a belief  that  a tyrant  will  ever  voluntarily  release  his  sub- 
jects from  the  governmental  compact.  Rather  might  it  be  expected 
that  the  last  iota  of  human  misery  would  be  borne,  and  the  oppres- 
sion would  descend  from  father  to  son,  to  the  latest  period  of 
earthly  existence:  The  despotism  of  our  sovereign  ought  to  be 

considered  as  an  implied  consent,  on  his  part,  to  dissolve  the  com- 
pact between  us;  and  he  and  his  subjects  must  be  considered  as 
one — there  can  be  no  distinction;  for,  in  any  other  view,  his  con- 
sent could  not  have  been  obtained  without  force.  There  is  such  a 
thing,  indeed,  as  tyranny  from  free  choice.  Sweden,  not  long  ago, 
surrendered  its  liberties  in  one  day,  as  Denmark  had  done  former- 
ly; so  that  this  branch  of  the  human  family  is  cut  off  from  every 
possible  enjoyment  of  human  rights.  But  the  right  to  resist  op- 
pression is  not  denied.  The  gentleman’s  doctrine  cannot,  there- 
fore, apply  to  national  communities. 

14.  Contracts  dissolved  without  the  consent  of  the 
KING  OF  Great  Britain. 

If  any  additional  force  was  wanting  to  confirm  what  I advance, 
it  would  be  derived  from  the  treaty  of  peace,  which  further  proves 
that  we  were  entitled  to  all  the  privileges  of  independent  nations. 
The  consent  of  all  the  people  of  Europe  said  we  were  free.  Our 
former  master  withheld  his  consent  till  a few  unlucky  events  com- 
pelled him.  And  when  he  gave  his  fiat^  it  gave  us,  by  relation  back 
to  the  time  of  the  declaration  of  independence,  all  the  rights  and 
privileges  of  a completely  sovereign  nation;  our  independence  was 
acknowledged  by  him  previous  to  the  completion  of  treaty  of 
peace.  It  was  not  a condition  of  the  treaty,  but  was  acknowl- 
edged, by  his  own  overture,  preparatory  to  it.  View  the  conse- 
quences of  their  fatal  doctrine.  There  would  not  only  have  been 


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21 


long  arrears  of  debts  to  pay,  but  a long  catalogue  of  crimes  to  be 
punished.  If  the  ultimate  acknowledgment  of  our  independence 
by  Great  Britain  had  not  relation  back  to  the  time  of  the  declara- 
tion of  independence,  all  the  intermediate  acts  of  legislation  would 
be  void,  and  every  decision  and  act,  consequent  thereon,  would  be 
null.  But,  sir,  we  were  a complete  nation  on  every  principle,  ac- 
cording to  the  authorities  I have  already  read,  in  addition  to  which 
I will  refer  your  honors  to  Vattel,  book  4th,  ch.  7,  sec.  88,  to  show 
we  were  entitled  to  the  benefits  of  national  law,  and  to  use  all  the 
resources  of  the  community:  “From  the  equality  of  all  nations 
really  sovereign  and  independent,  it  is  a principle  of  the  voluntary 
law  of  nations,  that  no  nation  can  control  another  in  its  internal 
municipal  legislation.”  If  we  consider  the  business  of  confiscation 
according  to  the  immemorial  usages  of  Great  Britain,  we  will  find 
that  the  law  and  practice  of  that  country  support  my  position.  In 
the  wars  which  respect  revolutions,  which  have  taken  place  in  that 
island — life,  fortune,  goods,  debts,  and  everything  else  were  confis- 
cated. The  crimen  Icesce  majestatis^  as  it  is  called,  involved  every- 
thing. Every  possible  punishment  has  been  inflicted  on  suffering 
humanity  that  it  could  endure,  by  the  party  which  had  the  superi- 
ority in  those  wars,  over  the  defeated  party  which  was  charged  with 
rebellion. 

15.  Consequences  which  would  have  resulted  had  England 

CONQUERED  AMERICA. 

What  would  have  been  the  consequences,  sir,  if  we  had  been 
conquered  ? Were  we  not  fighting  against  that  majesty  ? Would 
the  justice  of  our  opposition  have  been  considered?  The  most 
horrid  forfeitures,  confiscations  and  attainders  would  have  been 
pronounced  against  us.  Consider  their  history,  from  the  time  of 
William  the  First  till  this  day.  Were  not  his  Normans  gratified 
with  the  confiscation  of  the  richest  estates  in  England  ? Read  the 
excessive  cruelties,  attainders  and  confiscations  of  that  reign.  En- 
gland depopulated,  its  inhabitants  stripped  of  the  dearest  privileges 
of  humanity,  degraded  with  the  most  ignominious  badges  of  bond- 
age, and  totally  deprived  of  the  power  of  resistance  to  usurpation 
and  tyranny.  This  inability  continued  to  the  time  of  Henry  the 
Eighth.  In  his  reign,  the  business  of  confiscation  and  attainder 
made  considerable  havoc.  After  his  reign,  some  stop  was  put  to 
that  effusion  of  blood  which  preceded  and  happened  under  it. 
Recollect  the  sad  and  lamentable  effects  of  the  York  and  Lan- 


22 


ARGUMENT  OF  PATRICK  HENRY 


castrian  wars.  Remember  the  rancorous  hatred  and  inveterate  de- 
testations of  contending  factions,  the  distinction  of  white  and  red 
roses.  To  come  a little  lower:  what  happened  in  that  island  in  the 
rebellions  of  1715  and  1745  ? If ' we  had  been  conquered,  would 
not  our  men  have  shared  the  fate  of  the  people  of  Ireland  ? A 
great  part  of  that  island  was  confiscated,  though  the  Irish  people 
thought  themselves  engaged  in  a laudable  cause.  What  confisca- 
tion and  punishments  were  inflicted  in  Scotland  ? The  plains  of 
Culloden,  and  the  neighboring  gibbets,  will  show  you.  I thank 
heaven  that  the  spirit  of  liberty,  under  the  protection  of  the  Al- 
mighty, saved  us  from  experiencing  so  hard  a destiny.  But  had  we 
been  subdued,  would  not  every  right  have  been  wrested  from  us  ? 
What  right  would  have  been  saved  ? Would  debts  have  been 
saved  ? Would  it  not  be  absurd  to  save  debts  while  they  should 
burn,  hang  and  destroy  ? 

Before  we  can  decide  with  precision,  we  are  to  consider  the 
dangers  we  should  have  been  exposed  to  had  we  been  subdued. 
After  presenting  to  your  view  this  true  picture  of  what  would  have 
been  our  situation,  had  we  been  subjugated;  surely  a correspondent 
right  will  be  found,  growing  out  of  the  law  of  nations,  in  our  favor. 
Had  our  subjugation  been  effected,  and  we  pleaded  for  pardon — 
represented  that  we  defended  the  most  valuable  rights  of  human 
nature,  and  thought  they  were  wrong — would  our  petition  have 
availed  ? I feel  myself  impelled,  from  what  has  passed,  to  ask 
this  question.  I would  not  wish  to  have  lived  to  see  the  sad  scenes 
we  should  have  experienced.  Needy  avarice  and  savage  cruelty 
would  have  had  full  scope.  Hungry  Germans,  blood-thirsty  Indi- 
ans, and  nations  of  another  color  would  have  been  let  loose  upon 
us.  The  sad  effects  of  such  warfare  have  had  their  full  influence 
on  a number  of  our  fellow-citizens.  Sir,  if  you  had  seen  the  sad 
scenes  which  I have  known;  if  you  had  seen  the  simple  but  tranquil 
felicity  of  helpless  and  unoffending  women  and  children,  in  little 
log-huts  on  the  frontiers,  disturbed  and  destroyed  by  the  sad  effects 
of  British  warfare  and  Indian  butchery,  your  soul  would  have  been 
struck  with  horror!  Even  those  helpless  women  and  children  were 
the  objects  of  the  most  shocking  barbarity. 

Give  me  leave  again  to  recur  to  Vattel,  p.  9:  “Nations  being 
free,  independent  and  equal,  and  having  a right  to  judge  according 
to  the  dictates  of  conscience,  of  what  is  to  be  done  in  order  to  ful- 
fill its  duties;  the  effect  of  all  this  is  the  producing,  at  least  ex- 
ternally and  among  men,  a perfect  equality  of  rights  between  na- 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


23 


tions  in  the  administration  of  their  affairs,  and  the  pursuit  of  their 
pretensions,  without  regard  to  the  intrinsic  justice  of  their  conduct, 
of  which  others  have  no  right  to  form  a definite  judgment,  so  that, 
what  is  permitted  in  one,  is  also  permitted  in  the  other;  and  they 
ought  to  be  considered  in  human  society  as  having  an  equal  right.” 
If  it  be  allowed  to  the  British  nation  to  put  to  death,  to  forfeit  and 
confiscate  debts  and  everything  else,  may  we  not  (having  an  equal 
right)  confiscate — not  life,  for  we  never  desire  it — but  that  which  is 
the  common  object  of  confiscation:  property,  goods,  and  debts, 
which  strengthen  ourselves  and  weaken  our  enemies  ? I trust  that 
this  short  recapitulation  of  events  shows  that,  if  there  ever  was  in 
the  history  of  man  a case  requiring  the  full  use  of  all  human  means, 
it  was  our  case  in  the  late  contest;  and  we  were,  therefore,  war- 
ranted to  confiscate  the  British  debts. 

i6.  In  a state  of  nature,  municipal  rights  and  obliga- 
tions ARE  DISSOLVED. 

I beg  leave  to  add  that  these  debts  are  lost  on  another  prin- 
ciple. By  the  dissolution  of  the  British  government,  America  went 
into  a state  of  nature;  on  the  dissolution  of  that  of  which  we  had 
been  members,  there  being  no  government  antecedent,  we  went 
necessarily  into  a state  of  nature.  To  prove  this,  I need  only  refer 
to  the  declaration  of  independence,  pronounced  on  the  fourth  day 
of  July,  1776,  and  our  State  Constitution.  It  recites  many  in- 
stances of  misrule  by  the  king  of  England;  it  asserts  the  right  and 
expediency  of  dissolving  the  British  government  and  going  into  a 
state  of  nature,  or,  in  other  words,  to  establish  a new  government. 
The  right  of  dissolving  it  and  forming  a new  system,  had  preceded 
the  fourth  day  of  July,  1776.  A recapitulation  of  the  events  of  the 
tyrannical  acts  of  government  would  demonstrate  a right  to  dis- 
solve it.  But  I may  go  farther  and  even  say,  that  the  act  of  parlia- 
ment which  declared  us  out  of  the  king’s  protection  dissolved  it. 
For  what  is  government  ? It  is  an  express  or  implied  compact  be- 
tween the  rulers  and  ruled,  stipulating  reciprocal  protection  and 
obedience.  That  protection  was  withdrawn,  solemnly  withdrawn 
from  us.  Of  consequence,  obedience  ceased  to  be  due.  Our  mu- 
nicipal rights  were  taken  away  by  one  blow.  Municipal  obligations 
and  government  were  also  taken  away  by  the  same  blow.  Well, 
then,  there  being  no  antecedent  government,  we  returned  into  a 
state  of  nature.  Unless  we  did  so,  our  new  compact  of  govern- 
ment could  only  be  a usurpation.  In  a state  of  nature,  there  is  no 


24 


ARGUMENT  OF  PATRICK  HENRY 


legal  lien  in  the  person  or  property  of  any  one.  If  you  are  not 
clear  of  every  antecedent  engagement,  what  is  the  legality  or 
strength  of  the  present  Constitution  of  government  ? If  any  ante- 
cedent engagements  are  to  bind,  how  far  are  they  to  reach  ? You 
had  no  right  to  form  a new  government,  if  the  old  system  existed; 
and  if  it  did  not  exist,  you  were  necessarily  and  inevitably  in  a 
state  of  nature.  In  my  humble  opinion,  by  giving  validity  to  such 
claims,  you  destroy  the  very  idea  of  the  right  to  form  a new  gov- 
ernment. Vattel  calls  government  the  totality  of  persons,  estates, 
and  effects,  formed  by  every  individual  of  the  new  society,  and  that 
totality  represented  by  the  governing  power.  How  can  the  totality 
exist  while  an  antecedent  right  exists  elsewhere  ? See  Grotius,  p.  4, 
which  I have  already  read,  and  note  29;  because  the  design  and 
good  of  civil  society  necessarily  require  that  the  natural  and  ac- 
quired rights  of  each  member  should  admit  of  limitations  several 
ways,  and,  to  a certain  degree,  by  the  authority  of  him  or  them  in 
whose  hands  the  sovereign  authority  is  lodged.  When  we  formed 
a new  government,  did  there  exist  any  authority  that  limited  our 
rights  ? How  can  the  totality  exist,  if  any  other  person  or  persons 
have  an  existing  claim  upon  you  ? It  appears  to  me  that  that  equal- 
ity which  is  involved  in  a state  of  nature  cannot  exist  while  such 
claim  exists.  The  court  will  recollect  what  I have  already  read 
out  of  Vattel,  in  the  sections  15  and  18.  The  equality  here  ascribed 
to  independent  nations  is  equally  ascribed  to  men  in  a state  of  na- 
ture. A moral  society  of  persons  cannot  exist  without  this  abso- 
lute equality.  The  existence  of  individuals  in  a state  of  nature  de- 
pends in  like  manner  upon,  and  is  inseparable  from  such  equality. 

Rights,  as  before  mentioned,  Vattel,  pp.  8 and  9,  are  divided 
into  internal  and  external;  of  external  rights  he  makes  the  distinc- 
tion of  perfect  and  imperfect.  I beseech  your  honors  to  fix  this 
distinction  in  your  minds.  The  perfect  external  right  only  is  ac- 
companied with  the  right  of  constraint.  The  imperfect  right  loses 
that  quality  and  leaves  it  to  the  party  to  comply  or  not  to  comply 
with  it.  When  the  former  government  was  dissolved,  the  American 
people  became  indebted  to  nobody.  You  either  owe  everything  or 
nothing;  and  every  contract  and  engagement  must  be  done  away, 
if  any.  In  a state  of  nature  you  are  free  and  equal.  But  how  are 
you  free,  if  another  have  a lien  on  your  body  ? Where  is  your 
freedom  or  your  equality  with  that  person  who  has  the  right  of 
constraining  you  ? This  right  of  constraint  implies  a complete  au- 
thority over  you,  but  not,  however,  to  enslave  you.  This  constraint 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


25 


is  always  adequate  to  the  right  or  obligation.  Where  can  you  find 
the  possibility  of  this  equality  which  nature  gives  her  sons,  if  we 
admit  an  existing  right  of  constraint  ? If  it  be  a fact  that  on  the 
dissolution  of  the  government  we  did,  enter  into  a state  of  nature 
(and  that  we  did,  I humbly  judge  .cannot  be  denied,  as  at  that  time 
no  government  existed  at  all),  it  destroys  all  claim  to  one  farthing. 
This  will  be  found  to  be  true,  as  well  upon  the  ground  of  equity 
and  good  conscience  as  in  law,  when  it  is  considered,  that  when  we 
went  into  a state  of  nature,  the  means  of  paying  debts  were  taken 
away  from  us  by  them;  because,  so  far  as  they  had  power  over  us, 
they  prevented  us  from  getting  money  to  pay  debts.  They  inter- 
dicted us  from  the  pursuit  of  profitable  commerce;  from  getting 
gold  and  silver,  the  only  things  they  would  take;  they  unjustly 
drove  us  to  this  extremity.  By  the  concession  of  the  worthy  gen- 
tleman, their  attack  upon  us  was  unjust. 

17.  Debts,  like  other  property,  subject  to  forfeiture. 

But,  then,  debts  are  not  subject  to  confiscation,  say  gentlemen, 
because  there  were  no  inquests,  no  office  found  for  the  common- 
wealth. Has  a debt  an  ear-mark  ? Is  it  tangible  or  visible  ? Has 
it  any  discriminating  quality  ? Unless  tangible  or  visible,  how  is  it 
to  be  ascertained  or  distinguished  ? What  does  an  inquest  mean  ? 
A solemn  inquiry  by  a jury,  by  ocular  examination,  with  other 
proofs.  If  an  inquest  of  office  were  to  he  had  of  land,  a jury  could 
tell  the  lines  and  boundaries  of  it,  because  they  may  be  distin- 
guished from  others,  and  its  identity  may  thereby  be  ascertained. 
If  a horse  be  the  object  of  inquiry,  he  can  be  easily  distinguished 
from  any  other  horse.  In  like  manner  every  other  article  of  visible 
property  may  be  subject  to  inquests;  but  such  a thing  as  an  inquest 
of  a debt  never  existed,  as  far  as  my  legal  knowledge  extends. 
What  are  to  be  the  consequences  if  this  proceeding  be  requisite  ? 
You  must  set  up  a court  of  inquisition,  summon  the  whole  nation, 
and  ask  every  man  how  much  do  you  owe  ? This  would  be  pro- 
ductive of  endless  confusion,  perplexity  and  expense,  without  the 
desired  effect.  The  laws  of  war  and  of  nations  require  no  more 
than  that  the  sovereign  power  should  openly  signify  its  will  that 
the  debts  be  forfeited.  There  is  no  particular  forensic  form  neces- 
sary. The  question  here  is-  not  whether  this  confiscation  be  tra- 
versed in  all  the  forms  of  municipal  regulations.  There  is  a ques- 
tion between  Great  Britain  and  America  similar  to  that  between 
Alexander  and  the  Thebans.  Has  the  sovereign  signified  his  pleas* 


26 


ARGUMENT  OF  PATRICK  HENRY 


ure  that  debts  be  remitted  ? A sign  is  completely  sufficient,  if  it 
be  understood  by  the  people.  There  is  a necessity  of  thus  speak- 
ing the  legislative  will,  that  the  other  party  may  know  it  and  retali- 
ate; for  what  is  allowed  to  one,  is  to  both  parties.  This  was  differ- 
ent from  the  nature  of  a solemn  war.  War  is  lawful  or  unlawful, 
according  to  the  manner  of  conducting  it.  In  the  prosecution  of  a 
lawful  solemrt  war,  it  is  necessary  that  you  do  not  depart  from  cer- 
tain rules  of  moderation,  honor  and  humanity,  but  act  according 
to  the  usual  practice  of  belligerent  powers.  Did  the  mother- 
country  conduct  the  war  against  us  in  this  manner  ? We  did 
openly  say,  we  mean  to  confiscate  your  debts,  and  modify  them, 
because  they  have  lost  their  perfect  external  quality;  they  are  im- 
perfect ; we  claim  that  right,  as  a sovereign  people,  over  that 
species  of  your  property.  Sir,  it  was  not  done  in  a corner.  It 
was  understood  by  our  enemies.  They  had  a right  to  retaliate  on 
any  species  of  our  property  they  could  find.  The  right  of  retalia- 
tion, or  just  retortion,  for  equivalent  damage  on  any  part  of  an 
enemy’s  property,  is  permitted  to  every  nation.  What  right  has 
the  British  nation  (for  if  the  nation  have  not  the  right,  none  of  its 
people  have)  to  demand  a breach  of  faith  in  the  American  govern- 
ment to  its  citizens  ? 

i8.  Effect  of  the  payment  of  paper  currency  to  the 

LOAN  OFFICE. 

I have  already  mentioned  the  engagement  of  the  government 
with  its  citizens  respecting  the  paper  money.  If  you  take  it, 
it  shall  be  money.  Shall  it  be  judged  now  not  to  be  mioney  ? 
Shall  this  compact  be  broken  for  the  sake  of  the  British 
nation  ? No,  sir;  the  language  of  national  law  is  otherwise.  Sir, 
the  laws  of  confiscation  and  paper  money  made  together  one  sys- 
tem, connected  and  sanctioned  by  the  legislature,  on  which  de- 
pended once  the  fate  of  our  country,  and  on  which  depend  now 
the  happiness,  the  ease  and  comfort  of  thousands  of  your  fellow- 
citizens.  Will  it  not  be  a breach  of  the  compact  with  your  people, 
to  say  that  the  money  is  not  to  keep  up  its  original  standard  in  the 
quality  given  it  by  law  ? What  were  the  effects  of  this  system  ? 
What  would  have  been  the  effects,  had  your  citizens  been  apprised 
that  British  debts  must  be  paid  ? Would  they  have  taken  the 
money  ? Would  they  have  deposited  the  money  in  the  loan  office, 
if  they  had  been  warned  by  law  that  they  must  deposit  it  subject 
to  the  future  regulations  of  peace;  that  it  should  not  release  them 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


27 


from  their  creditors  ? However  right  it  may  appear  now  to  decry 
the  paper  money,  it  would  have  been  fatal  then;  for  America  might 
have  perished  without  the  aid  and  effect  of  that  medium.  Your 
citizens,  trusting  to  this  compact,  submitted  to  a number  of  things 
almost  intolerable — impressments  and  violences  on  their  property; 
it  encouraged  them  to  exert  themselves  in  defense  of  their  property 
against  the  enemy  during  the  war.  If  the  debt  in  the  declaration 
mentioned  be  recovered,  the  compact  is  subverted  as  respecting  the 
paper  money.  And  this  subversion  is  to  take  effect  for  the  interest 
of  those  men  whom,  by  all  laws  human  and  divine,  we  were 
obliged  to  consider  as  enemies  ; men  who  were  obliged  to  comply 
with  the  regulations  and  requisitions  of  their  king;  and  our  people 
will  have  been  laboring,  not  for  themselves,  but  for  the  benefit  of 
the  British  subject. 

19.  Application  of  the  law  of  salvage. 

When  a vessel  is  in  danger  in  a storm,  those  who  abide  on  board 
of  her,  and  encounter  the  dangers  of  the  sea  to  save  her,  are  al- 
lowed some  little  compensation  for  salvage,  for  their  fidelity  and 
gallantry  in  endeavoring  to  prevent  her  loss;  while  those  who  aban- 
don her  are  entitled  to  nothing.  But,  in  opposition  to  this  wise 
and  politic  principle,  we  who  have  withstood  the  storms  and 
dangers,  receive  no  compensation;  but  those  who  left  the  political 
ship  and  joined  those  on  the  other  side  of  the  water  who  wished 
to  sink  her,  and  who  caused  her  to  fight  eight  long  years  for  her 
preservation,  shall  come  in  at  last  and  get  their  full  share  of  this 
vessel,  and  yet  will  have  been  exonerated  fiom  every  charge.  For 
whom,  then,  were  the  people  of  America  engaged  in  war  ? Not  for 
themselves,  I am  sure;  the  property  that  they  saved  will  not  be  for 
themselves,  but  for  those  whom  they  had  a right  to  call  enemies.  I 
am  not  willing  to  ascribe  to  the  meanest  American  the  love  of 
money,  or  desire  of  eluding  the  payment  of  his  debts,  as  the  motive 
of  engaging  in  the  war.  No,  sir;  he  had  nobler  and  better  views. 
But  he  thinks  himself  well  entitled  to  those  debts,  from  the  laws 
and  usages  of  nations,  as  a compensation  for  the  injuries  he  has 
sustained.  There  is  a sad  drawback  on  this  property  saved.  A 
national  debt  for  seventeen  years,  considerable  taxes  which  were 
profusely  laid  during  the  war  on  lands  and  slaves;  and,  since  the 
peace,  we  have  been  loaded  with  a heavy  taxation.  I know  that  I 
advocate  this  cause  on  a very  advantageous  ground  when  I speak 
of  the  right  of  salvage.  The  cargo  on  board  the  wrecked  vessel 


28 


ARGUMENT  OF  PATRICK  HENRY 


belongs  to  the  British,  it  will  have  been  saved  for  them;  but  the 
salvage  is  due  to  us  only.  If  you  take  it  on  the  ground  of  interest, 
you  may  hold  as  a pledge,  you  may  retain  for  salvage.  If  you  take 
it  on  the  scale  of  the  common  law,  or  of  national  law,  you  may  op- 
pose damages  to  debts,  retain  the  debts,  to  retribute  and  compen- 
sate for  the  injuries  they  have  done  you.  I have  not  got  over  and 
I trust  established  the  first  point;  that  is,  that  debts  in  common 
wars  are  subject  to  forfeiture,  and  much  more  so  in  a revolution 
war  like  the  American  was. 

Here  Mr.  Henry  proceeded  to  argue  that  a debt  once  forfeited  is  gone  for 
ever,  unless  revived  by  treaty.  He  discussed  the  rules  by  which  treaties  are  to 
be  construed,  and  contended  that  they  could  confer  no  benefit  unless  mutually 
observed  in  good  faith;  that  the  stipulations  of  a treaty  are  in  the  nature  of  a 
condition  precedent,  and  that  a breach  on  either  side  dissolves  the  covenant. 
He  then  showed  in  what  respects  the  treaty  had  been  violated  by  England,  and 
that  these  violations  were  admitted  by  the  demurrer.  Next  he  argued  that  a 
British  subject  could  claim  no  advantage  from  a treaty  annulled  by  the  sovereign, 
because  the  individual  was  bound  by  the  acts  of  the  sovereign.  He  continued: 

Here  are  two  moral  persons.  Great  Britain  and  America,  making 
a contract.  The  plaintiff  claims  and  the  defendant  defends  under 
and  through  them;  and  if  either  nation  or  moral  person  has  no 
right  to  benefits  from  such  a contract,  individuals  claiming  under 
them  can  have  none.  The  plaintiff  then  claims  under  his  nation, 
but  if  that  nation  have  committed  perfidy  respecting  the  observ- 
ance of  the  compact,  no  right  can  be  carried  therefrom  to  the 
plaintiff.  It  puts  him  back  in  the  same  situation  he  was  in  before 
the  treaty. 

Here  Mr.  Henry  cited  Vattel  to  sustain  his  position.  To  consider  a treaty 
void  as  to  all  the  individuals  of  a nation  collectively,  while  each  individual  of 
that  nation  might  separately  enforce  it,  was  a paradoxical  absurdity.  He  then 
claimed  that  the  treaty,  even  if  in  force,  could  not  operate  on  plaintiff’s  claim 
since  it  was  discharged  by  payment  into  the  loan  office,  before  the  treaty  was. 
made.  He  continued; 

v2o.  Defendant’s  debt  did  not  exist  when  the  treaty  of 
PEACE  was  signed. 

To  derive  a benefit  from  the  treaty,  the  plaintiff  must  demand  a 
bona  fide  debt;  that  is,  a debt  bona  fide  due.  The  word  debt  im- 
plies that  the  thing  is  due;  for  if  it  be  not  due,  how  can  it  be  a 
debt?  To  give  to  these  words,  “all  debts  heretofore  contracted,” 
a strictly  literal  sense,  would  be  to  authorize  a renewed  demand 
for  debts  which  had  been  actually  paid  off  to  the  creditor;  for 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS.  29 

these  were  certainly  within  the  words  of  the  treaty,  being  debts 
heretofore  contracted.  To  avoid  this  absurd  and  dishonest  conse- 
quence, you  must  look  at  the  intention  of  the  thing;  and  the  inten- 
tion certainly  was  to  embrace  those  cases  where  there  had  not 
been  a legal  payment.  I ask  why  a payment  made  in  gold  and 
silver  is  a legal  payment  ? Because  the  coin  of  those  metals  is  made 
current  by  the  laws  of  this  country.  If  paper  be  made  current  by 
the  same  authority,  why  should  not  a payment  in  it  , be  equally 
valid  ? The  British  subject  cannot  demand  payment,  because  I 
confront  his  demand  with  a receipt.  Why  will  a receipt  discharge 
in  any  instance  ? Because  it  is  founded  on  the  laws  of  the  country. 
A receipt  given  in  consequence  of  a payment  in  coin,  is  a legal 
discharge,  only  because  the  laws  of  the  country  make  it  so.  I ask, 
then,  why  a receipt  given  in  consequence  of  a payment  into  the 
treasury  be  not  of  equal  validity,  since  it  has  precisely  the  same 
foundation  ? It  is  expressly  constituted  a discharge  by  a legisla- 
ture having  competent  authority.  This  debt,  therefore,  having 
been  legally  paid  by  the  contractor,  was  not  due  from  him  at  the 
time  of  making  the  treaty,  and  therefore  is  not  within  the  intention 
of  that  instrument.  But,  say  the  gentlemen  on  the  other  side,  the 
one  payment  has  the  consent  of  the  creditor,  and  the  other  has 
not;  he  who  paid  coin  has  the  creditor’s  consent  to  the  discharge, 
but  he  who  paid  money  into  the  treasury  wants  it.  Have  we  not 
satisfied  this  honorable  court  that  the  governing  power  had  a right 
to  put  itself  in  the  place  of  the  British  subjects  ? Having  had  an 
unquestionable  right  to  confiscate,  sequester  or  modify  those  debts 
as  they  pleased,  they  had  an  equally  indubitable  right  to  substitute 
themselves  in  the  stead  of  the  plaintiff,  otherwise  those  authorities 
have  been  quoted  in  vain. 

Here  Mr.  Henry  argued  that  the  contract  was  governed  by  the  lex  loci  contractus^ 
and  having  been  discharged  under  a valid  law  of  the  place  where  it  was  made, 
there  was  no  subsisting  debt  when  the  treaty  was  made.  He  then  discussed  the 
right  of  the  court  to  take  cognizance  of  the  violation  of  the  treaty,  on  the  ground 
that  the  facts  being  admitted  by  the  pleadings,  it  must  declare  the  law  arising  on 
the  facts.  He  continued : 

21.  Plaintiff  must  show  full  compliance  with  the 

TREATY. 

The  existence  or  non-existence  of  the  treaty  was  a legal  infer- 
ence from  the  facts  agreed,  which  the  court  alone  were  competent 
to  decide.  The  plaintiff  himself  had  forced  this  question  on  the 


30 


ARGUMENT  OF  PATRICK  HENRY 


court,  by  relying  in  his  replication  on  the  treaty,  as  restoring  his 
right  to  recover  this  debt.  He  sets  up  his  right  under  this  instru- 
ment expressly,  and  then  questions  the  jurisdiction  of  the  court  to 
decide  upon  the  instrument!  The  treaty,  quoad  hoc^  is  the  covenant 
of  the  parties  in  this  suit;  the  question  presented  by  the  pleadings 
is,  whether  the  plaintiff  who,  by  that  covenant,  has  taken  upon 
himself  the  performance  of  a precedent  condition,  can  claim  any 
benefit  under  it,  until  he  shall  show  that  this  precedent  condition 
has  been  performed.  On  this  question  the  gentleman’s  argument 
is,  that  the  court  have  no  power  to  decide  on  the  construction  of 
the  covenant,  which  he  himself  has  brought  before  them;  that  they 
have  nothing  to  do  with  the  dependence  or  independence  of  the 
stipulations,  or  the  reciprocal  rights  of  the  parties,  to  claim  under 
the  covenant  without  showing  a previous  performance  on  their  re- 
spective parts!  On  the  contrary,  I insist  that,  under  the  Constitu- 
tion of  the  United  States,  the  question  belongs  peculiarly  and  ex- 
clusively to  the  judicial  department;  that  by  the  Constitution  it 
was  expressly  provided  that  the  judicial  power  should  extend  to 
all  cases  arising  under  treaties;  that  the  law  of  treaties  embraces 
the  whole  extent  of  natural  and  national  law;  that  the  Constitution, 
therefore,  by  referring  all  cases  arising  under  treaties  to  the  judici- 
ary, has  of  necessity  invested  them  with  the  power  of  appealing  to 
that  code  of  laws  by  which  alone  the  construction,  the  operation, 
the  efficacy,  the  legal  existence  or  non-existence  of  treaties  must 
be  tested;  and  by  this  code  we  are  told,  in  the  most  emphatic 
terms,  that  he  who  violates  one  article  of  a treaty  releases  the 
other  party  from  the  performance  of  any  part  of  it;  that  the  refer- 
ence of  all  cases  arising  under  treaties  to  the  judicial  department, 
carries  with  it  every  power  near  or  remote,  direct  or  collateral, 
which  is  essential  to  a fair  and  just  decision  of  those  cases;  that 
in  every  such  case  the  very  first  question  is,  is  there  a treaty  or 
not  ? — not  whether  there  has  been  a treaty,  but  whether  there  is  an 
existing,  obligatory,  operative  treaty.  To  decide  this  question,  the 
court  must  bring  the  facts  to  the  standard  of  the  laws  of  nations; 
and  by  this  standard  it  had  been  shown  that,  in  the  case  at  bar, 
there  existed  no  treaty  from  which  a British  subject  could  claim 
any  benefit.  If  the  judicial  department  has  not  the  power  of  de- 
ciding this  question,  there  was  no  department  in  the  American 
government  which  possesses  it.  The  State  governments  have 
nothing  to  do  with  it;  Congress  cannot  touch  the  subject;  they 
may,  indeed,  declare  war  for  a violation;  but  a nation  is  not  to  be 


ON  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


31 


forced  to  this  extremity  on  every  occasion.  There  are  other  modes 
of  redress,  short  of  a declaration  of  war,  to  which  nations  have  a 
right  to  resort;  and  one  of  them,  as  I have  shown,  was  the  power 
of  withholding  from  the  perfidious  violator  of  a treaty  those  bene- 
fits which  he  claimed  under  it.  Now,  Congress  cannot  by  a law 
declare  a treaty  void;  it  is  not  among  those  grants  of  power  which 
the  Constitution  makes  to  them;  they  cannot,  therefore,  meddle 
with  the  subject  in  any  other  way  than  by  a declaration  of  war; 
neither  can  the  President  and  Senate  touch  it.  They  can  make 
treaties;  but  the  Constitution  gives  them  no  power  to  expound  a 
treaty,  much  less  to  declare  it  void;  they  can  only  unite  with  the 
House  of  Representatives  in  punishing  an  infraction  by  a declara- 
tion of  war.  To  the  judiciary  alone,  then,  belongs  this  pacific 
power  of  withholding  legal  benefits  claimed  under  a treaty,  because 
of  the  mala  fides  of  the  party  claiming  them. 

22.  Power  of  interpretation  of  treaties  in  the  courts. 

Now,  what  will  be  the  situation  of  this  country,  compared  with 
that  of  Great  Britain,  if  you  deny  this  power  to  the  judiciary  ? If 
you  have  not  observed  the  treaty  with  good  faith,  and  go  to  En- 
gland, claiming  any  benefit  under  the  treaty,  there  is  a power  there, 
called  royal  prerogative,  which  will  tell  you:  No;  go  home  and  act 
honestly,  and  you  shall  have  your  rights  under  the  treaty.  Your 
breach  of  faith  will  not  drive  them  to  a declaration  of  war;  there 
is  a power  there  which  obtains ' redress  by  withholding  your  rights, 
until  you  act  with  good  faith;  but  where  is  the  reciprocal  and  cor- 
responding power  in  our  government,  if  it  be  not  in  the  judiciary  ? 
It  is  nowhere;  we  have  no  redress  short  of  a declaration  of  war. 
Is  this  one  of  the  precious  fruits  of  the  adoption  of  the  federal 
Constitution,  to  bind  us  hand  and  foot  with  the  fetters  of  techni- 
cality, and  leave  us  no  way  of  bursting  them  asunder,  but  by  a de- 
claration of  war  and  the  effusion  of  human  blood!  It  was  never 
intended.  The  wisdom  and  virtue  which  framed  the  Constitution 
could  never  have  intended  to  place  the  country  in  this  humiliating 
and  awful  predicament.  Give  to  this  power  of  deciding  on  treaties, 
which  is  delegated  to  the  federal  judiciary,  a liberal  construction; 
give  them  all  the  incidental  powers  necessary  to  carry  it  into  effect; 
open  to  them  the  whole  region  of  natural  and  national  law,  which 
furnishes  the  only  rule  of  expounding  those  national  compacts 
called  treaties,  and  your  government  is  unmutilated,  its  measure  of 
power  is  full  up  to  the  exigencies  of  the  nation,  and  you  treat  on 


S2 


ARGUMENT  OF  PATRICK  HENRY 


equal  terms.  But  upon  the  opposite  construction,  much  better  would 
it  be  that  America  should  have  no  treaties  at  all,  than  that,  having 
them,  she  should  want  those  means  of  enforcement  and  redress 
which  all  other  nations  possess. 

Mr.  Henry  then  ridiculed  the  argument  of  the  plaintiff,  that  under  the  law 
of  nations  only  estates  of  an  alien  enemy  were  liable  to  confiscation,  and  that 
mere  chases  in  action,  owing  to  their  incorporeal  and  intangible  nature,  could 
not  be  confiscated.  He  continued: 

23.  A CHOSE  IN  ACTION  A SUBJECT  OF  FORFEITURE. 

But  a chose  in  action  is  not  liable  to  forfeiture.  Why  ? Because 
it  is  too  terrible  to  be  done.  There  is  such  a thing  as  straining  at 
a gnat  and  swallowing  a camel.  Things  much  more  terrible  have 
been  done;  things  from  which  our  nature,  where  it  has  any  pre- 
tensions to  be  pure  and  correct,  must  recoil  with  horror.  Show  me 
those  laws  which  forfeit  your  life,  attaint  your  blood,  and  beggar 
your  wife  and  children.  Those  sanguinary  and  inhuman  laws,  to 
which  everything  valuable  must  yield,  are  to  be. found  in  the  code 
of  that  people  under  whom  the  plaintiff  now  claims.  Is  it  so  ter- 
rible to  confiscate  debts,  when  they  forfeit  life  and  corrupt  the  very 
source  of  your  blood  ? Though  every  other  thing  dear  to  human- 
ity is  forfeitable,  yet  debts,  it  seems,  must  be  spared!  Debts  are 
too  sacred  to  be  touched!  It  is  a mercantile  idea  that  worships 
mammon  instead  of  God.  A chose  in  action  shall  pass;  it  is  with- 
out your  reach.  What  authority  can  they  adduce  in  support  of 
such  conclusive  pre-eminence  for  debts  ? No  political  or  human 
institution  has  placed  them  above  other  things.  If  debt  be  the  most 
sacred  of  earthly  obligations,  I am  uninformed  from  whence  it  has 
derived  that  eminence.  The  principle  is  to  be  found  in  the  day- 
books, journals  and  ledgers  of  merchants,  not  in  the  writings  or 
reasonings  of  the  wise  and  well-informed — the  enlightened  instruc- 
tors of  mankind.  Can  any  gentleman  show  me  any  instance  where 
the  life  or  property  of  a gentleman  or  plebeian  in  England  is  for- 
feited, and  yet  his  debts  spared  ? The  State  can  claim  debts  due 
to  one  guilty  of  high  treason.  Are  they  not  subject  to  confisca- 
tion ? I concur  in  that  sound  principle,  that  good  faith  is  essential 
to  the  happiness  of  mankind;  that  its  want  stops  all  human  inter- 
course and  renders  us  miserable.  This  principle  is  permanent  and 
universal.  Look  to  what  point  of  the  compass  you  will,  you  will 
find  it  pervading  all  nations.  Who  does  not  set  down  its  sacred 
influence  as  the  only  thing  tha^  comforts  human  life  ? Does  the 


ox  THE  RIGHT  TO  CONFISCATE  BRITISH  DEBTS. 


33 


plaintiff  claim  through  good  faith  ? How  does  he  derive  his  claim  ? 
Through  perfidy;  through  a polluted  channel.  Everything  of  that 
kind  would  have  come  better  from  our  side  of  the  question  than 
from  theirs. 

But  the  gentleman  * has  observed,  that  neither  the  declaration 
of  the  legislature,  by  the  act  of  1779,  that  the  British  subjects  had 
become  aliens,  and  their  property  vested  in  the  commonwealth,  nor 
any  other  act  passed  on  the  subject,  could  divest  the  debts  out  of 
the  British  creditors.  It  cannot  be  done  without  the  solemnity  of 
an  inquiry  by  a jury.  The  debt  of  A.  or  B.  cannot  be  given  to  C., 
without  this  solemnity.  Is  the  little  legality  of  forms  which  are 
necessary  when  you  speak  of  estates  and  titles,  requisite  on  such 
mighty  occasions  as  these  ? When  the  fate  of  a nation  is  con» 
cerned,  you  are  to  speak  the  language  of  nature.  When  your  very 
existence  is  at  stake,  are  you  to  speak  the  technical  language  of 
books,  and  to  be  confined  to  the  limited  rules  of  technical  criti- 
cism ? to  those  tricks  and  quirks,  those  little  twists  and  twirls  of 
low  chicanery  and  sophistry,  which  are  so  beneficial  to  professional 
men  ? Alexander  said,  in  the  style  of  that  mighty  man,  to  the 
Thessalian:  “You  are  free  from  the  Thebans,”  and  the  debts  they 
owed  them  were  thereby  remitted.  Every  other  sovereign  has  the 
same  right  to  use  the  same  natural,  manly  and  laconic  language; 
not  when  he  is  victorious  only,  but  in  every  situation,  if  he  be  in  a 
state  of  hostility  with  other  nations.  The  acts  use  not  the  language 
of  technicality,  they  speak  not  of  releases,  discharges  and  acquit- 
tances; but  they  speak  the  legislative  will,  in  simple  speech,  to  the 
human  understanding — a style  better  suited  to  the  purpose  than  the 
turgid  and  pompous  phraseology  of  many  great  writers. 


Mr.  Ronald. 


PUBLIC  OPINION  INVARIABLY  AGAINST  THE  PRISONER. 


JAMES  T.  BRADY. 

My  learned  friend,  the  District  Attorney,  ‘ and  myself,  do  not  exactly 
agree  in  our  notions  about  men  and  human  nature.  He  said  that  i 
“spoke  rather  like  a cynic  than  a philosopher,”  when  I declared  that  man 
would  much  more  readily  believe  evil  of  his  neighbor  than  good.  I retain 
my  opinion.  There  is  an  instinct  in  every  human  being  that  relates  to  the 
purpose  for  which  the  Almighty  seems  to  have  designed  him, — a roving 
hunter, — “to  live  as  the  hunter  liveth,  and  to  die  as  the  hunter  dieth.” 
No  race  of  mankind  is  ever  satisfied  with  the  place  in  which  it  first  achieved 
prosperity.  However  large,  rich  and  fertile  the  domain  possessed,  we  are 
ever  eager  to  push  out,  even  in  the  midst  of  our  luxuries  and  enjoyments, 
and  seek  new  theatres  for  physical  and  intellectual  effort.  When  we  look 
back  upon  history,  we  find  that  civilization  has  forced  its  path  over  the 
ruins  of  empires  ; and  there  is  not  a single  fallen  column,  there  is  not  a 
smouldering  cornice,  nor  a piece  of  stone  round  which  the  weeds  cluster  in 
desolate  places  where  at  one  period  luxury,  refinement,  and  art  may  have 
existed,  which  was  not  in  its  overthrow  a necessary  foothold  for  that  prog- 
ress which,  we  think,  has  advanced  us  to  a position  so  enviable  in  these 
latter  days.  We  are  a restless,  roving  race  of  hunters;  and  the  very  mo- 
ment you  give  the  common  multitude  an  object  to  pursue,  the  instinct  of 
the  chase  naturally  tends  to  superiority  over  judgment  and  humanity. 
When  any  thing  flieth  from  mankind  they  all  pursue ; let  it  turn  with  the 
courage  of  a rat,  and  the  multitude  are  likely  to  fall  back.  The  instinct  of 
our  race  is  developed  in  the  administration  of  the  law.  When  a man  is 
charged  with  what  is  termed  a “ great  crime,”  did  you  ever  know  the  news- 
papers to  suggest  that  he  might  possibly  be  innocent  ? Is  that  because 
editors  are  destitute  of  humanity?  No,  but  entirely  because  of  this  in- 
stinct. If  you  go  into  a court  of  justice  you  will  find  that  in  almost  every 
extraordinary  case,  the  instincts  of  the  multitude  are  with  the  State.  When 
the  prosecution  are  in  want  of  testimony,  any  man  who,  far  off  in  Texas, 
knows  a fact  that  can  assist  the  People,  will  communicate  it  to  the  district 
attorney ; but  if  you  were  charged  with  crime,  accused,  though  innocent — 
arrested,  and  brought  to  trial,  men  who  were  present,  and  saw  the  deed 
committed  by  another,  would  often  rather  suffer  you  to  die  guiltless  on  the 
scaffold,  than  come  forward  and  confess  that  they  were  at  the  scene  of  the 
occurrence,  if  that  might  expose  them  to  shame  or  even  to  trouble.—* 
[From  his  argument  in  defense  of  Huntington,  charged  with  forgery,  December  29, 1856.] 

> Mr.  A.  Oakey  Hall 


[34] 


ARGUMENT  OF  WILLIAM  PINKNEY, 

On  the  Law  of  Constructive  Treason,  in  the  Defense 
OF  John  Hodges. 

[U.  S.  V.  Hodges,  2 Wheeler’s  Cr.  Cas.  477.] 

AT  A CIRCUIT  COURT  OF  THE  UNITED  STATES,  HELD 
AT  BALTIMORE,  MD.,  MAY  TERM,  1815. 


Analysis  of  Mr.  Pinknet^s  Argument. 

ADDRESS  TO  THE  JURY. 

8.  Conduct  of  the  court  and  the  prosecu- 
. tion. 

9.  Law  of  treason  defined.— Opinion  ot  the 
court  not  law. 

10.  Motives  of  the  prisoner  laudable,  not 
criminal. 

11.  Arraignment  of  the  doctrine  of  con- 
structive treason. 

12.  Practical  results  of  doctrine  announced 
by  the  court. 

The  dual  argument  of  Mr.  Pinkney  to  the  court  and  jury,  forms  part  of  an 
episode  in  juridical  history,  which  has  no  parallel  since  Thomas  Erskine,  at  the 
trial  of  the  Dean  of  St.  Asaph,  withstood  with  respect  and  firmness  what  he  re- 
garded, on  the  part  of  the  court,  as  an  encroachment  upon  the  province  of  the 
jury  and  the  constitutional  and  legal  rights  of  his  client.  ' The  conduct  of  the 
latter  resulted  in  the  passage  of  Lord  Camden’s  Act,  which  practically  secured 
the  liberty  of  the  press  and  the  freedom  of  speech;  the  conduct  of  the  former 
abolished  forever  the  idea  that  such  an  offense  as  “ constructive  treason  ” could 
possibly  exist  under  our  system.  The  history  and  circumstances  surrounding  the 
accusation  and  arrest  of  John  Hodges  were  part  of  the  res  gestcs  of  the  unfortu- 
nate engagement  at  Bladensburg  and  the  burning  of  the  city  of  Washington, 
by  the  British,  under  General  Ross,  in  the  summer  of  1814,  in  all  of  which  Mr. 
Pinkney  bore  a conspicuous  part  in  defending  his  home  and  country.  On  their 
way  to  Washington,  the  English  sailed  up  the  Chesapeake  into  the  Patuxent  river, 
and  landed  at  Benedict.  Thence  they  passed  through  Upper  Marlborough  to 
Bladensburg,  where  a battle  was  fought  with  the  Americans,  in  which  Mr.  Pink- 
ney, at  the  head  of  his  gallant  brigade  of  Baltimore  riflemen,  received  a serious 
wound.  Four  British  stragglers,  who  had  fallen  behind  the  main  army,  were 
taken  prisoners  by  some  of  the  inhabitants  of  Marlborough.  When  General 

[35] 


1.  The  jury,  judges  of  both  the  law  and  the 
facts. 

а.  Criminal  intent  the  essence  of  every  of- 

fense. I 

3.  Illustrations  of  the  rule. 

4.  Adhering  to  the  enemy  and  levying  war. 

5.  The  unmistakable  intention  of  the  pris- 

oner. 

б.  Crime  proceeds  always  from  a wicked 

heart. 

7.  The  circumstances  of  the  surrender. 


36 


ARGUMENT  OF  WILLIAM  PINKNEY 


Ross  discovered  the  fact,  he  demanded  the  return  of  the  men  from  the  Marlbor- 
ough authorities,  and  accompanied  his  demand  with  a threat,  that  if  they  were 
not  surrendered  before  I2  o’clock  that  night,  he  would  lay  the  town  in  ashes, 
and  hold  as  hostages  the  wives  and  children  of  the  inhabitants.  It  seems  that 
the  prisoners  had  been  sent  to  the  American  camp  some  miles  distant,  and  to 
save  the  town  John  Hodges  and  his  brother  hastened  thither,  and  besought  Gen- 
eral Bowie,  who  had  charge  of  the  captives,  to  deliver  them,  that  they  might  be 
restored  to  the  enemy,  at  the  same  time  informing  him  that  the  safety  of  the 
town  depended  upon  their  immediate  return.  The  General,  aware  of  the  dan- 
ger which  would  result  from  a longer  detention,  and  being  himself  powerless  to 
avert  the  threatened  destruction,  reluctantly  gave  the  prisoners  to  Hodges,  who 
surrendered  them  to  the  enemy.  For  this  act  he  was  indicted  for  treason,  and 
tried  before  Hon.  Justices  Duvall,  Bland  and  Houston,  in  the  United  States  Cir- 
cuit Court  held  at  Baltimore,  in  May,  1815.  Elias  Glenn,  Esq.,  appeared  for 
the  government;  U.  S.  Heath,  J.  E.  Hall,  and  William  Pinkney  appeared  for  the 
prisoner. 

The  crime  of  treason  is  thus  defined  by  the  Constitution:  “ Treason  against 
the  United  Slates  shall  consist  only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort.”*  By  an  act  of  Congress,  ap- 
proved April  30,  1790,  it  is  declared,  that  “if  any  person  or  persons  owing  alle- 
giance to  the  United  States  of  America,  shall  levy  war  against  them,  or  shall  ad- 
here to  their  enemies,  giving  them  aid  and  comfort,  within  the  United  States  or 
elsewhere,  and  shall  be  thereof  convicted  on  confession  in  open  court,  or  on  the 
testimony  of  two  witnesses  to  the  same  overt  act  of  treason,  whereof  he  or  they 
shall  stand  indicted,  such  person  or  persons  shall  be  adjudged  guilty  of  treason 
against  the  United  States,  and  shall  suffer  death.”  Under  this  act  it  was  claimed 
that  the  delivery  of  the  prisoners  by  Hodges  to  the  enemy  was  adhering  to  them, 
and  giving  them  aid  and  comfort,  and  was  treason  against  the  United  States. 

Such  an  attempt  to  deprive  a good  citizen  of  his  life  under  the  forms  of  law, 
perhaps  cannot  be  found  in  the  history  of  American  jurisprudence,  and  it  would 
seem  almost  incredible  that  in  the  tribunals  of  a popular  government,  an  effort 
should  be  made  to  revive  judicial  murder  under  the  guise  of  constructive  treason. 
To  claim  that  the  delivery  to  the  enemy  of  four  prisoners,  compelled  by  a bar- 
barous and  inhuman  threat,  involving  the  ruin  of  an  entire  community,  was  de- 
liberate treason,  and  that  such  surrender,  under  such  circumstances,  could  be 
construed  into  a willfurmtenixon  to  furnish  “aid  and  comfort”  to  the  enemy, 
seems  absurd.  Nevertheless,  such  a claim  was  not  only  made  by  counsel  for  the 
government,  but  was  sustained  by  the  court. 

When  the  trial  came  on  it  was  proven  by  the  prosecution,  that  the  prisoner 
had  intentionally  surrendered  the  captives  to  the  British.  Mr.  Pinkney  then,  on 
behalf  of  the  accused,  read  an  address  from  the  grand  jury  to  the  President  of 
'the  United  States,  in  which  the  jurors  expressed  their  respect  for  the  motives  of 
Hodges,  and  prayed  that  a nolle  prosequi  should  be  entered.  At  this  stage  of  the 
trial  counsel  for  the  government  asked  the  court  to  direct  the  jury,  that  the  crime 
of  treason  had  been  established.  That  the  case  presented  but  tvo  inquiries:  (i) 
Did  the  accused  deliver  the  prisoners?  (2)  Did  he  intend  to  do  so?  These  acts 


* Const.  Art.  3,  § 5- 


ON  THE  LAW  OF  CONSTRUCTIVE  TREASON. 


37 


having  been  proven,  it  was  claimed  they  involved  the  intention,  and  that  the 
crime  of  treason  had  been  made  out.  Having  prayed  for  the  instruction  of  the 
court,  the  judges  said  they  would  hear  counsel.  Mr.  Pinkney  then  addressed 
the  court  as  follows: 

May  it  please  your  Honors: — There  is  no  law  in  this  prayer, 
for  it  excludes  that  which  is  the  essence  of  the  offense — intention; 
and  if  it  was  otherwise,  the  court  has  no  right  to  instruct  the  jury 
as  if  this  were  a civil  case.  No  instance  has  occurred  in  modern 
times  of  an  attempt  to  bind  the  jury  in  such  a case  by  the  opinion 
of  the  court.  What  remedy  is  there  fcr  the  party  if  you  err?  We 
may  appeal  to  a higher  tribunal,  it  is  true;  but  what  is  the  conse- 
quence ? The  man  is  hanged  and  your  judgment  is  reversed. 

I.  The  jury,  judges  of  both  the  law  and  the  facts. 

In  England,  did  their  courts  interfere  in  this  mode  in  the  cele- 
brated cases  of  Hardy,  and  Horne  Tooke  and  others  ? No,  it  would 
not  have  been  endured.  The  best  security  for  the  rights  of  indi- 
viduals is  to  be  found  in  the  trial  by  jury.  But  the  excellence  of 
this  institution  consists  in  its  exclusive  power.  The  jury  are  here 
judges  of  law  and  fact,‘  and  are  responsible  only  to  God,  to  the  pris- 
oner, and  to  their  own  consciences.  After  the  case  is  closed  you 
may  indeed  advise  the  jury,  if  they  ask  it,  or  if  you  think  proper  to 
do  so  without  being  asked  by  them.  But  to  interrupt  the  progress 
of  the  trial  in  the  way  proposed  would  be  monstrous.  Suppose  the 
court  to  give  the  direction,  I shall  not  submit  to  it  as  the  prisoner’s 
counsel.  I will,  on  the  contrary,  tell  the  jury  that  it  is  not  law.  It 
is  my  right  to  do  so,  and  in  a case  of  blood  I dare  not  forego  the 
exercise  of  it.  I trust  I shall  not  be  placed  in  a predicament  which 
will  thus  set  my  duty  to  a man  whose  life  is  in  my  charge  against 
my  respect  for  this  tribunal.  I pray  your  honors  to  suffer  this 
cause  to  go  on  in  the  customary  and  legal  manner. 

In  reply  to  Mr.  Pinkney  the  court  said,  they  were  bound  to  declare  the  law 
whenever  they  were  called  upon  in  civil  and  criminal  cases,  and  requested  to  hear 
from  counsel  for  the  prosecution.  Mr.  Glenn  commented  upon  the  authorities  to 

^ Hon.  Benj.  R.  Curtis,  in  U.  S.  v.  Morris  (i  Curtis’  C.  Ct.  R.  23),  held 
that  under  the  Constitution  and  laws  of  the  United  States  the  jury  are  not  the 
judges  of  the  law  in  a trial.  They  are  to  take  the  law  from  the  court,  and  apply 
it  to  the  facts  in  evidence,  and  then  frame  their  general  verdict  of  guilty  or  not 
guilty.  In  Morris’  case,  the  questions  of  law  related  to  the  constitutionality  of 
an  act  of  Congress.  To  the  general  rule  laid  down  by  Judge  Curtis,  however, 
there  seem  to  be  two  exceptions,  namely,  in  trials  for  treason  and  libel. 


38 


ARGUMENT  OF  WILLIAM  PINKNEY 


support  his  position,  and  cited  I East’s  C.  L.  p.  70;  Vigol’s  Case,  2 Dali.  p.  346; 
Cranbourne’s  Case,  Salk.  p.  633. 

MR.  PINKNEY. — Nothing  but  an  utter  confusion  of  ideas  could 
have  introduced  a doubt  upon  the  subject.  The  gentleman’s  prayer 
excluded  all  idea  of  criminal  intention;  or  it  relied  upon  the  influ- 
ence of  criminal  motive,  as  a necessary  corollary  from  the  naked 
facts  charged,  as  the  overt  acts  in  the  indictment. 

2.  Criminal  intent  the  essence  of  every  offense. 

It  may  be  affirmed  as  an  universal  proposition,  that  criminal  in- 
tention is  the  essence  of  every  species  of  crime.  All  indictments 
commence  with  an  assertion  of  corrupt  motives;  and  in  indictments 
for  treason,  the  overt  acts  laid  are  to  show  the  manner  in  which  the 
wicked  intention  is  carried  into  execution.  In  the  speeches  of  Lord 
Erskine,  to  whom  the  world  is  so  largely  indebted  for  a correct 
knowledge  of  the  principles  of  civil  liberty  and  the  law' of  treason, 
you  will  find  him  perpetually  contending,  and  contending  with 
effect,  that  although  the  crown  had  proved  the  facts  charged,  it  had 
not  shown  the  evil  design,  the  corrupt  purpose,  without  which  the 
facts  are  nothing. 

Here  Mr.  Pinkney  referred  to  and  read  part  of  Mr.  Erskine’s  remarks  in  the 
case  of  Lord  George  Gordon.  In  that  case  it  was  proved  that  the  prisoner  in- 
cited the  acts  which  produced  the  consequences  complained  of,  yet  he  was  ac- 
quitted, because  he  was  not  the  enemy  of  the  king,  nor  the  friend  of  any  man 
who  was  his  enemy.  He  then  continued: 

3.  Illustrations  of  the  rule. 

Take  the  case  of  a man  who,  in  time  of  war,  is  charged  with  the 
defense  of  an  important  fortress  or  castle,  which  he  surrenders  to 
an  incompetent  force.  What  more  effectual  means  could  he  have 
adopted  to  aid  the  enemy  than  the  delivery  of  this  fortress  ? The 
books  will  tell  you,  that  if  he  was  bribed  to  this  desertion  of  his 
duty;  if  he  did  it  with  a view  to  benefit  the  enemy;  he  is  guilty  of 
treason.  But  if  pusillanimity  was  the  cause,  or  if  it  arose  from  a 
false  calculation  of  his  own  means,  or  the  force  of  the  enemy,  he  is 
not  a traitor.  You  may  banish  him  with  ignomy  from  the  ranks 
which  he  has  disgraced,  or  try  him  by  martial  law  as  a coward  or  a 
fool;  but  he  has  committed  no  treason. 

Suppose  a powerful  force  to  invade  the  country,  to  which  resist- 
ance is  hopeless.  They  levy  contributions;  they  do  not  proclaim 
that  they  will  hang  me  if  I neglect  to  comply  with  this  order;  but 


ON  THE  LAW  OF  CONSTRUCTIVE  TREASON. 


39 


they  threaten  plunder  and  desolation.  I know  they  have  the  power 
to  execute  that  threat,  and  I comply  accordingly.  Now  the  paying 
of  money,  or  the  furnishing  of  provisions,  is  an  assistance;  it  is 
“ giving  aid  and  comfort  ” much  more  effectually  than  the  delivery 
of  a few  prisoners  or  a deserter.  Yet  no  man  will  call  this  treason, 
because  there  is  no  evidence  of  hostility  to  the  interests  of  the 
country.  The  authorities  say  it  is  not  treason. 

In  Stone’s  case,^  the  indictment  charged  as  an  overt  act  of  ad- 
herence to  the  enemy,  that  the  prisoner  conspired,  with  others,  to 
collect  intelligence,  within  England  and  Ireland,  of  the  disposition 
of  the  king’s  subjects,  in  case  of  an  invasion  of  either  country,  and 
to  communicate  such  intelligence  to  the  enemy.  The  tendency  of 
parts  of  the  correspondence,  which  was  given  in  evidence,  was  to 
advise  the  enemy  against  an  invasion  of  England,  by  representing 
the  improbability  of  its  being  attended  with  any  success,  from  the 
general  disposition  of  the  people. 

Now  it  was  scarcely  possible  that  such  a correspondence  could 
have  been  opened  and  maintained  with  other  than  corrupt  motives. 
Yet  the  counsel  were  allowed  to  argue  that  the  letters  were  trans- 
mitted with  a good  intent,  in  order  to  avert  the  danger  of  so  great 
a calamity  as  an  invasion,  and  the  court  said,  the  jury  were  to  judge 
from  all  the  circumstances,  whether  the  intelligence  had  been  sent 
with  that  view. 

4.  Adhering  to  the  enemy  and  levying  war. 

My  client  is  charged,  as  Stone  was  charged,  with  being  an  ad- 
herent; and  like  him  is  entitled  to  be  sheltered  by  his  motives  from 
the  imputation  of  treason.  The  district  attorney  confounds  the  in- 
dictment which  you  are  now  trying  with  an  indictment  for  levying 
war.  I admit  that  it  has  been  decided,  that  if  a man  becomes  an 
integral  part  of  the  enemy’s  force,  and  acts  with  it,  he  necessarily 
levies  war  and  is  guilty  of  treason,  unless  it  appears  that  he  did  so 
pro  terrore  mortis.  The  law  will  suffer  no  other  exculpation  of  such 
conduct;  it  will  excuse  it  upon  no  other  motive.  But  will  the  gen- 
tlemen refer  us  to  some  authority  which  declares,  that  if  a man, 
without  joining  the  enemy  so  as  to  levy  war,  does,  upon  virtuous  or 
even  pardonable  inducements  (having  no  reference  to  the  promotion 
of  the  enemy’s  views),  that  which  happens  or  is  calculated  to  be 
advantageous  to  the  enemy,  he  is  therefore  a traitor  ? What  is  an 


’ I East’s  C.  L.  p.  79. 


40 


ARGUMENT  OF  WILLIAM  PINKNEY 


adherent  ? Can  he  be  anything  less  than  a willing  partisan,  a cor- 
rupt auxiliary  of  the  enemy  ? Such,  at  least,  is  the  natural  and 
ordinary  import  of  the  word;  and  you  cannot  strain  it  beyond  that 
import  by  the  refinements  of  construction,  to  the  prejudice  of  the 
accused,  without  reviving  the  ferocious  and  appalling  doctrine  of 
constructive  treason,  which  once  made  England  bleed  at  every  pore, 
and  stained  the  palace  and  the  cottage  with  judicial  murder.  The 
protecting  spirit  of  the  Constitution,  and  of  the  statute  which  acts 
upon  it,  as  well  as  humanity  and  justice,  would  be  outraged  by  such 
a course. 

5.  The  unmistakable  intention  of  the  prisoner. 

Unlike  the  conduct  of  Stone,  the  conduct  of  Hodges  presents 
nothing  ambiguous  to  the  most  zealous  scrutiny.  His  honorable 
feelings  and  intentions  are  acknowledged  by  all;  he  was  urged  by 
the  solicitation  of  those  whom  he  respected;  he  was  led  by  a gen- 
erous sympathy  for  the  situation  of  one  who  is  deservedly  dear  to 
all  who  know  him;  he  was  actuated  by  an  apprehension,  by  no 
means  unreasonable,  for  the  quiet  and  safety  of  the  affrighted 
women  and  helpless  children  of  the  neighborhood,  and  for  the  se- 
curity of  the  persons  and  property  of  the  whole  district.  The 
treason  of  adherence  cannot  be  committed  by  one  whose  heart  is 
warm  with  all  the  honorable  feelings  of  the  man  and  the  patriot. 

Overt  acts  undoubtedly  do  discover  the  man’s  intentions;  but  I 
conceive  they  are  not  to  be  considered  merely  as  evidence,  but  as 
the  means  made  use  of  to  effect  the  purposes  of  the  heart.”  ^ 

6.  Crime  proceeds  always  from  a wicked  heart. 

This  is  the  master  key  which  lets  you  into  the  whole  secret  of 
this  title  of  the  criminal  law.  Sir  Walter  Tyrrel,  who,  in  shooting 
at  a deer  killed  the  king,  could  not  be  convicted  of  treason.  The 
killing  was  per  infortunium.  So,  where  a person  non  compos  slays 
another  designedly,  still  he  is  innocent,  because  there  is  no  malig- 
nity in  his  heart.  So  in  every  homicide,  it  is  felonious,  justifiable  or 
excusable,  according  to  the  purpose  with  which  the  act  was  perpe- 
trated. It  is  murder  where  it  is  done  through  malice;  manslaughter, 
if  without  malice;  where  it  is  done  through  misfortune,  or  in  self 
defense,  it  is  excusable,  and  it  is  justifiable  when  done  in  advance- 
ment of  public  justice,  in  obedience  to  the  laws.  If  the  heart  be 


P'oster,  p.  203. 


ON  THE  LAW  OF  CONSTRUCTIVE  TREASON. 


41 


ancontaminated  by  corrupt  intentions,  the  man  is  innocent,  for  it  is 
motive  that  qualifies  actions.  As  it  will  be  with  God  so  it  is  with 
the  man:  the  latent  intention  of  the  heart  must  be  searched. 


7.  The  circumstances  of  the  surrender. 

Look  at  the  locus  in  quo — the  scene  where  the  plot  of  this  treason 
is  laid.  A hostile  force,  but  the  day  before,  had  traversed  the  coun- 
try in  all  the  pride  of  victory.  The  jus  belli  was  lord  of  the  as- 
cendant. The  army,  if  such  a force  may  deserve  the  name,  which 
had  been  relied  upon  for  the  defense  of  the  capitol,  had  been  broken 
up  and  dissipated  to  every  quarter  of  the  compass.  The  country 
was  menaced  by  an  enemy  with  whom,  to  adopt  the  language  of 
Caesar,  it  was  easier  to  do  than  to  say.  If  I were  addressing  the 
jury  I might  appeal  to  their  love  of  country.  I might  remind  them 
that  they  are  administering  law  for  posterity  as  well  as  for  us.  But 
I am  addressing  a tribunal  where  these  considerations  have  their 
full  weight,  and  I expect  with  confidence  that  the  court  will  vindi- 
cate the  doctrines  which  I have  had  the  honor  to  advance. 

DUVALL,  C.  J. — The  court  would  have  been  better  satisfied  if 
the  whole  case  had  been  gone  through  in  the  usual  way;  but  as  the 
district  attorney  had  prayed  an  opinion  on  the  law,  the  court  will 
give  their  opinion. 

Here  the  court  made  the  following  decision;  ist.  Hodges  is  accused  of  ad- 
hering to  the  enemy,  and  the  overt  act  laid  consists  in  the  delivery  of  certain 
prisoners;  and  I am  of  opinion  that  the  overt  act  laid  in  the  indictment  and 
proved  by  the  witnesses,  is  high  treason  against  the  United  States.  2d.  When 
the  act  itself  amounts  to  treason,  it  involves  the  intention,  and  such  was  the 
character  of  this  act.  No  threat  of  destruction  of  property  will  excuse  or  justify 
such  an  act:  nothing  but  a threat  of  life,  and  that  likely  to  be  put  into  execution. 
3d.  The  jury  are  not  bound  to  conform  to  this  opinion,  because  they  have  a 
right,  in  all  criminal  cases,  to  decide  on  the  law  and  the  facts. 

HOUSTON,  J. — I do  not  entirely  agree  with  the  chief  justice 
in  any  except  the  last  remark. 

MR.  PINKNEY  (rising  and  addressing  the  jury). — The  opinion 
which  the  chief  justice  has  just  delivered  is  not,  and  I thank  God 
for  it,  the  law  of  the  land.  If  you  have  the  slightest  doubt  on  the 
subject,  I will  undertake  to  remove  it,  to  show  you  that  the  cases 
have  been  misconceived,  and  that  the  conclusions  drawn  from  them 


are  erroneous. 


42 


ARGUMENT  OF  WILLIAM  PINKNEY. 


8.  Conduct  of  the  court  and  the  prosecution. 

No  man  can  feel  for  the  learned  judge  who  has  just  given  you 
his  instruction,  a reverence  and  affection  more  sincere  than  I do. 
But  reverence  and  affection  for  him  shall  not  stand  in  the  way  of 
the  great  duty  which  I owe  to  a fellow  citizen  who  relies  on  me  to 
shield  his  innocence  from  the  charge  of  guilt,  and  his  life  from  an 
attainder  for  treason.  I had  hoped  that,  since  his  motives  were 
admitted  on  all  hands  to  be  entitled  to  praise,  since  the  grand  jury 
had  associated  with  their  indictment  a certificate  of  the  purity  of 
his  views,  and  a solemn  recommendation  that  the  prosecution  should 
be  abandoned,  he  would  at  least  have  been  left  by  the  district  at- 
torney, and  the  court,  to  obtain  from  you,  as  he  could,  a deliverance 
from  the  danger  that  encompassed  him.  In  that  hope  I have  been 
disappointed.  As  if  the  salvation  of  the  State  depended  upon  the 
conviction  of  this  unfortunate  man,  whose  situation,  one  would 
think,  an  inquisitor  might  deplore,  the  district  attorney  has  gone 
out  of  his  way  to  bring  down  vengeance  upon  him;  and  one  of  the 
court  has  told  you  that  he  is  a traitor,  and  that  you  ought  to  find 
him  so. 

In  a case  where  justice  might  be  expected  to  be  softened  into 
clemency,  and  even  to  connive  at  acquittal,  where  every  generous 
sentiment  must  take  part  with  the  accused,  and  law  might  be  thought 
to  fear  the  reproach  of  tyranny,  if  it  should  succeed  in  crushing 
him;  in  such  a case  the  established  order  of  trial  is  deserted,  a per- 
nicious novelty  is  introduced,  the  court  is  called  upon  to  mix  itself 
in  your  deliberations,  to  mutilate  the  defense  of  the  prisoner’s  coun- 
sel, to  harden  your  consciences  against  the  solicitations  of  an  en- 
lightened mercy,  and  to  sacrifice  the  prisoner  to  gloomy  and  exter- 
minating principles,  which  would  render  the  noble  and  beneficent 
system  of  law,  for  which  we  are  distinguished,  a hideous  spectacle 
of  cruelty  and  oppression.  For  the  sake  of  the  country  to  which  I 
belong,  as  well  as  of  my  client,  I will  not  only  protest  before  you 
against  these  principles,  but  will  examine  and  speak  of  them  with 
freedom,  restrained  only  by  the  decorum  which  this  place  re- 
quires. 

9.  Law  of  treason  defined. — Opinion  of  the  court  not 

LAW. 

In  my  argument  to  the  court,  I showed  that  if  it  be  done  treach- 
erously it  is  treason;  but  that  if  the  commander  act  from  any  mo 


ON  THE  LAW  OF  CONSTRUCTIVE  TREASON. 


43 


tive  not  corrupt,  no  indictment  can  touch  him.  If  the  fort  be  as 
impregnable  as  Gibraltar,  and  be  garrisoned  with  50,000  men,  and 
it  is  surrendered  to  a force  of  half  that  number,  from  motives  of 
fear,  the  commander  cannot  be  punished  as  a traitor.  What  can 
be  more  strong  to  show  that  upon  an  indictment  for  adherence,  the 
law  looks  into  the  heart,  and  adapts  its  penalties  accordingly  ? Has 
that  authority  been  answered  ? 

In  the  case  of  Stone,  which  was  parallel  with  the  point,  the 
court  said  expressly,  if  the  heart  be  pure  it  matters  not  how  incor- 
rect the  conduct.  So  the  counsel  argued,  and  Stone  was  acquitted. 
Has  any  answer  been  given  to  that  authority  ? Has  any  been  even 
attempted  ? 

This  indictment  charges  Hodges  with  having  done  certain 
things  wickedly,  maliciously,  and  traitorously.  Must  not  the 
United  States  prove  what  they  allege?  When  the  law  allows 
even  words  to  be  given  in  evidence  as  explanatory  of  intention 
to  exculpate,  it  admits  that  exculpation  may  be  made  out  by 
proof  of  innocent  motives;  that  overt  acts  alone  do  not  furnish 
a criterion;  that  concomitant  facts,  illustrative  of  the  state  of  the 
heart,  must  not  be  neglected. 

A military  force  levies  contributions.  If  you  pay  them  for  the 
purpose  of  saving  the  country  from  farther  mischief,  although  there 
be  no  fear  or  danger  of  death,  the  law  says  this  is  not  treason.  By 
the  doctrine  of  the  chief  justice,  however,  it  is  treason,  and  conse- 
quently his  doctrine  is  unsound. 

10.  Motives  of  the  prisoner  laudable,  not  criminal. 

On  this  occasion,  the  enemy  were  in  complete  power  in  the  dis- 
trict where  the  transactions  occurred  which  are  complained  of  in 
the  indictment.  They  were  unawed  by  the  thing  which  we  called 
an  army,  for  it  had  fled  in  every  direction.  They  were  omnipotent. 
The  law  of  war  prevailed,  and  every  other  law  was  silent.  The 
domestic  code  was  suspended.  They  menaced  pillage  and  confla- 
gration; and,  after  they  had  wantonly  destroyed  edifices  which  all 
civilized  warfare  had  hitherto  respected,  was  it  to  be  believed  that 
they  would  spare  a petty  village  which  had  renewed  hostilities 
before  the  seal  of  its  capitulation  was  dry  ? There  was  menace — 
power  to  execute — probability — nay,  certainty,  that  it  would  be 
executed. 

How,  then,  can  you  find  a wicked  and  traitorous  motive  in  the 
breast  of  my  client  ? There  is  not  only  the  absence  of  any  wicked 


ARGUMENT  OF  WILLIAM  PINKNEY 


motive,  but  there  is  the  visible  presence  of  those  which  are  lauda 
ble  : an  attachment  to  Dr.  Beanes,  anxiety  for  the  defenseless 
people  about  him,  a desire  to  preserve  the  country  from  the  afflic- 
tions which  hung  over  it.  In  conduct  so  characterized,  so  pro- 
duced, we  discover  the  operations  of  an  excellent  heart  upon  a 
mind  which  virtuous  inducements  could  betray  into  error,  but  what 
way  we  can  distort  it  into  treason  I have  not  yet  been  able  distinct- 
ly to  learn. 

II.  Arraignment  of  the  doctrine  of  constructive  treason. 

The  conduct  is  in  itself  treasonable,  says  the  chief  justice.  It 
necessarily  imports  the  wicked  intention  charged  by  the  indict- 
ment. The  construction  makes  it  treason,  because  it  aids  and  com- 
forts the  enemy. 

These  are  strong  and  comprehensive  positions;  but  they  have 
not  been  proved;  and  they  cannot  be  proved  until  we  relapse  into 
the  gulf  of  constructive  treason,  from  which  our  ancestors  in  an- 
other country  have  long  since  escaped. 

Gracious  God  ! In  the  nineteenth  century  to  talk  of  construct- 
ive treason ! Is  it  possible  that  in  this  favored  land — this  last 
asylum  of  liberty — blest  with  all  that  can  render  a nation  happy  at 
home  and  respected  abroad — thK  should  be  law?  No.  I stand  up 
as  a man  to  rescue  my  country  from  this  reproach.  I say  there  is 
no  color  for  this  slander  upon  our  jurisprudence.  Had  I thought 
otherwise  I should  have  asked  for  mercy,  not  for  law.  I would 
have  sent  my  client  to  the  feet  of  the  president,  not  have  brought 
him,  with  bold  defiance,  to  confront  his  accusers,  and  demand  your 
verdict.  He  could  have  had  a nolle  prosequi.  I confirmed  him  in 
his  resolution  not  to  ask  it,  by  telling  him  that  he  was  safe  without 
it.  Under  these  circumstances  I may  claim  some  respect  for  my 
opinion.  My  opportunities  for  forming  a judgment  upon  this  sub- 
ject, I am  compelled  to  say,  by  the  strange  turn  which  this  cause 
has  taken,  are  superior  to  those  of  the  chief  justice.  I say  nothing 
of  the  knowledge  which  long  study  and  extensive  practice  enabled 
me  to  bring  to  the  consideration  of  the  case.  I rely  upon  this;  my 
opinion  has  not  been  hastily  formed  since  the  commencement  of 
the  trial.  It  is  the  result  of  a deliberate  examination  of  all  the  au- 
thorities, of  a thorough  investigation  of  the  law  of  treason  in  all  its 
forms,  made  at  leisure  and  under  a deep  sense  of  a fear^^ul  responsi- 
bility of  my  client.  It  depends  upon  me  whether  he  should  submit 
himself  to  your  justice,  or  use  with  the  chief  magistrate  the  inter- 


ON  THE  LAW  OF  CONSTRUCTIVE  TREASON. 


45 


cession  of  the  grand  jury,  which  could  not  have  failed  to  have  been 
successful.  You  are  charged  with  his  life  and  honor,  because  I 
assured  him  that  the  law  was  a pledge  for  the  security  of  both.  I 
declared  to  him  that  I would  stake  my  own  life  upon  the  safety  of 
his ; and  I declare  to  you  now,  that  you  have  as  much  power  to 
shed  the  blood  of  the  advocate  as  to  harm  the  client  whom  he 
defends. 

If  the  mere  naked  fact  of  delivery  constitute  the  crime  of  trea- 
son, why  not  hang  the  man  who  goes  under  a flag  of  truce  to  return 
or  exchange  prisoners  ? According  to  the  doctrine  of  the  chief 
justice,  this  man  is  equally  guilty  with  him  who  stands  at  the  bar, 
if  you  are  forbidden  to  examine  his  mind,  but  are  commanded  by 
the  law  to  look  only  to  his  acts.  I ask  you  to  consider  this  in  the 
spirit  of  Stone’s  case.  That  doctrine,  I pledge  myself,  goes  through 
every  nerve  and  artery  of  the  law. 

12.  Practical  results  of  doctrine  announced  by  the 

COURT. 

If  the  doctrine  of  the  chief  justice  be  the  law  of  the  land,  every 
man  concerned  in  the  deeds  of  blood  that  were  acted  during  our 
recent  war,  was  a murderer. 

Our  gallant  soldiers  who  had  repulsed  the  hostile  step  whenever 
it  trod  upon  our  shores;  our  gallant  tars  who  unfurled  our  flag,  ac- 
quired for  us  a name  and  rank  upon  the  ocean  which  will  not  soon 
be  obliterated — these  are  all  liable  to  be  arraigned  at  this  bar. 
These  men  have  carried  dismay  and  death  into  the  ranks  of  the’ 
foe;  blood  calls  for  blood.  You  dare  not  inquire  into  the  causes 
which  produced  the  circumstances  ; which  attended  the  motives  ; 
which  prompted  the  deeds  of  carnage.  The  act  you  are  told  by 
the  chief  justice,  and  such  is  the  reasoning  of  the  attorney  general, 
involves  the  intent. 

Gentlemen  ! this  desolating  doctrine  would  sweep  us  from  the 
face  of  the  earth.  Even  when  we  deserved  to  be  crowned  with 
laurels  we  should  be  stretched  on  a gibbet.  I tremble  for  my 
children,  for  my  country,  when  I reflect  upon  the  consequences  of 
these  detestable  tenets  which  reduces  indiscretion  and  wickedness 
to  the  same  level.  Which  of  you  is  there  that  in  some  unguarded 
moment  may  not,  with  honest  motives,  be  imprudent  ? Which  of 
you  can  hope  to  pass  through  life  without  the  imputation  of  crime, 
if  your  motives  may  be  separated  from  your  conduct,  and  guilt 


46 


ARGUMENT  OF  WILLIAM  PINKNEY. 


may  be  fastened  upon  your  actions,  although  the  heart  be  inno- 
cent ? 

Gentlemen  ! so  solemnly,  so  deeply,  so  religiously  do  I feel  im- 
pressed with  this  principle,  that  I know  not  how  to  leave  the  case 
with  you,  although  at  the  present  moment  it  strikes  my  mind  in  so 
clear  a light  that  I know  not  how  to  make  it  more  clear. 

If  this  damnable  prosecution  should  prevail,  it  would  be  the 
duty  of  the  district  attorney  instantly  to  arraign  Gen.  Bowie,  one 
of  the  witnesses  in  this  case,  than  whom  a purer  patriot  never 
lived.  Nay,  half  Prince  George’s  county  would  come  within  its 
baleful  influence. 

Yet  such  is  the  law  the  chief  justice  recommends  to  you.  His 
associate  does  not  concur  with  him.  In  this  conflict  of  opinion  I 
should  be  entitled  to  your  verdict,  but  I rest  the  case  upon  more 
exalted  grounds.  I call  upon  you  as  honorable  men,  as  you  are 
just,  as  you  value  your  liberties,  as  you  prize  your  Constitution,  to 
say — and  to  say  it  promptly — that  my  client  is  not  guilty. 


The  jury,  without  hesitating  a moment,  rendered  a verdict  of  not  guilty. 


ARGUMENT  OF  WILLIAM  WIRT, 

In  the  Case  of  Gibbons  v.  Ogden. 

[9  Wheat.  I.] 

IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES, 
FEBRUARY  TERM,  1824. 


Constitutional  Law. — The  power  to  regulate  commerce  is  vested 
exclusively  in  Congress,  and  embraces  navigation  within  the  limits  of 
every  State.  This  power,  when  exercised,  is  supreme,  and  State  laws 
repugnant  thereto  are  void. 


Analysis  of  Mk. 

1.  Of  the  powers  vested  in  Congress,  and 

the  rules  of  construction  applicable 
thereto. 

2.  Exclusive  and  concurrent  powers  tested 

and  distinguished. 

3.  The  power  of  a State  may  be  taken  away 

by  implication.— Repugnancy  and  oc- 
casional interference  distinguished. 

4.  Why  the  power  to  promote  the  progress 

of  science  was  vested  exclusively  in 
Congress. 

5.  The  grant  from  its  nature  exclusive,  not 

concurrent. 


Wirt’s  Argument. 

6.  The  power,  even  if  concurrent,  is  repug- 

nant to  the  laws  of  Congress. 

7.  The  term  “ possessors,”  as  used  in  the 

State  statute,  an  evasion. 

8.  Nature  and  character  of  the  patent  laws. 

9.  The  laws  of  New  York  conflict  with 

the  power  of  Congress  to  regulate 
commerce. 

10.  Distinction  as  to  quarantine  and  police 

regulations. 

11.  The  coasting  trade  protected  by  the 

laws  of  Congress. 

12.  Peroration. — Reply  to  Mr,  Emmett. 


“ The  Steamboat  Case  from  New  York,”  a"  it  was  familiarly  termed  while 
pending  in  the  courts,  involves  one  of  the  most  interesting  and  important  discus- 
sions to  be  met  with  in  the  annals  of  American  jurisprudence.  It  is  interesting, 
because  it  is  associated  with  the  greatest,  certainly  the  most  useful  invention  in 
the  history  of  civilization — an  achievement  of  scientific  skill  which  will  secure 
the  fame  of  Robert  Fulton  throughout  all  coming  time.  It  is  important,  because 
its  effect  was  to  nullify  and  sweep  out  of  existence  the  laws  of  a sovereign  State, 
which  secured  to  its  citizens  privileges  of  the  most  vital  importance  and  of  incal- 
culable value,  after  those  statutes  had  been  declared  valid  by  the  highest  judicial 
authority  in  the  State — a tribunal  composed  of  some  of  the  most  learned  and  dis- 
tinguished jurists  of  the  age.  The  magnitude  of  the  questions  presented  will  ap 
pear  upon  a recital  of  the  facts. 


48 


ARGUMENT  OF  WILLIAM  WIRT 


Thomas  Gibbons,  a citizen  of  Elizabethtown,  in  the  State  of  New  Jersey, 
•was  the  owner  of  two  boats  named,  respectively,  the  “Stoudinger”  and  the 
Bellona,”  which  were  propelled  by  steam  and  used  to  transport  passengers  be- 
tween the  city  of  New  York  and  Elizabethtown.  These  vessels  were  duly  en- 
rolled and  licensed  under  an  act  of  Congress  passed  February  i8th,  1793  (L.  U.  S. 
vol.  I,  p.  332,  chap.  8),  entitled  “An  Act  for  enrolling  and  licensing  ships  and 
vessels  to  be  employed  in  the  coasting  trade  and  fisheries,  and  for  regulating  the 
same.”  Aaron  Ogden  filed  his  bill  in  Chancery  and  obtained  an  injunction  re- 
straining Gibbons  from  running  or  navigating  his  boats,  upon  the  ground  that 
the  Legislature  of  the  State  of  New  York  had  granted  to  Robert  R.  Livingston 
and  Robert  Fulton,  the  original  inventors  of  the  use  of  steam  as  a motive 
power,  the  exclusive  right  and  privilege  to  navigate  the  waters  of  New  York 
State  with  boats  moved  by  steam  or  fire,  and  that  Livingston  and  Fulton 
had  granted  and  assigned  to  him  (Ogden)  these  rights  and  privileges.  Gibbons 
filed  his  answer  and  asked  that  the  injunction  be  dissolved,  among  other 
reasons,  because  the  law  of  New  York  purporting  to  create  and  establish  an 
exclusive  right  to  navigate  the  waters  of  the  State  were  repugnant  to  the  Consti- 
tution of  the  United  States,  which  conferred  upon  Congress  alone  the  power  to 
regulate  commerce,  and  to  promote  the  progress  of  science  and  the  useful  arts. 
That,  by  virtue  of  the  license  obtained  by  him,  pursuant  to  the  act  of  Congress 
passed  February  i8th,  1793,  he  acquired  the  right  to  employ  his  boats  in  the 
coasting  trade,  to  navigate  between  parts  of  the  same  State,  or  of  different  States, 
and  this  right,  he  claimed,  could  not  be  interfered  with  or  restricted  by  the  law 
of  any  particular  State.  After  an  elaborate  argument  and  upon  due  deliberation, 
the  Chancellor  denied  the  motion  and  made  the  injunction  perpetual.  From  this 
decision  an  appeal  was  taken  to  the  highest  tribunal  in  the  State,  where  the  judg- 
ment of  the  lower  court  was  affirmed.  The  appeal  was  carried  to  the  Supreme 
Court  of  the  United  States,  where  it  was  argued  by  Mr.  Webster  and  Attorney- 
General  Wirt  on  the  part  of  the  appellant,  and  by  Mr.  Oakley  and  Mr.  Thomas 
Addis  Emmett  for  the  respondent,  and  resulted  in  a reversal  of  the  judgment  and 
a dissolution  of  the  injunction.  The  controversy  has  been  regarded  as  one  of  the 
ablest  and  most  brilliant  intellectual  contests  w^hich  had  taken  place  before  the 
Supreme  Court  up  to  that  time. 

The  effect  of  the  laws  here  sought  to  be  annulled  was  felt  throughout 
the  Union,  in  every  State  bordering  upon  the  ocean  or  navigable  waters,  and, 
while  the  litigation  was  pending,  was  productive  of  hostile  legislation  which 
brought  the  neighboring  States  of  Connecticut  and  New  Jersey  upon  the 
verge  of  civil  war  with  their  sister  commonwealth,  the  great  Empire  State. 
By  the  laws  of  New  York  no  person  could  navigate  the  waters  within  its  juris- 
diction without  a license  from  Livingston  and  Fulton,  upon  penalty  of  for- 
feiture of  the  vessel.  By  the  laws  of  Connecticut  no  one  having  such  a license 
was  allowed  to  enter  her  waters;  while  in  New  Jersey  it  was  enacted,  that  if  any 
of  her  citizens  should  be  restrained  or  hindered  from  using  steam  vessels  plying 
between  her  ports  and  those  of  New  York,  such  person  might  bring  an  action  for 
damages  in  New  Jersey,  and  recover  treble  costs  against  the  party  who  had  thus 
interfered  under  the  laws  of  New  York.  Upon  the  theory  that  each  State  was 
an  independent  sovereignty,  these  acts  of  retortion  and  reprisal  must  eventually 
have  resulted  in  civil  war.  The  importance  of  the  litigation,  therefore,  cannot 


IX  THE  CASE  OF  GIBBONS  v.  OGDEN. 


49 


“be  overestimated.  A tribunal  clothed  with  the  power  to  pass  upon  such  moment- 
ous questions  as  were  here  presented,  has  never  before  existed  in  the  world.  No 
wonder  that  Edward  Everett  was  most  profoundly  impressed  when  he  entered  the 
portals  of  the  Supreme  Court  and  contemplated  the  moral  grandeur  of  such  a body. 
“ From  it,”  he  said,  in  his  elegant  way,  “from  it  the  voice  of  equity  and  justice 
has  gone  forth  to  the  most  powerful  States  of  the  Union,  administering  the  law 
between  citizens  of  independent  States,  settling  dangerous  controversies,  adjust- 
ing disputed  boundaries,  annulling  unconstitutional  laws,  reversing  erroneous 
decisions,  and,  with  a few  mild  words  of  judicial  wisdom,  disposing  of  questions 
a hundredfold  more  important  than  those  which,  within  the  past  year,  from  the 
plains  of  Holstein,  have  shaken  the  pillars  of  Continental  Europe  and  all  but 
brought  a million  of  men  into  deadly  conflict  with  each  other.” 

No  person, however,  appreciated  more  keenly  than  Mr.  Wirt  himself,  the  sig- 
nificance of  the  occasion  and  the  great  intellectual  display  about  to  take  place. 
Shortly  before  the  argument  he  wrote  to  his  friend,  Judge  Carr,  urging  him 
to  be  present  on  the  occasion.  “Emmett  and  Oakley,”  he  writes,  “on  one 
side,  Webster  and  myself  on  the  other.  Come  down  and  hear  it.  Emmett’s 
whole  soul  is  in  the  cause,  and  he  will  stretch  all  his  powers.  Oakley  is  said  to 
be  one  of  the  first  logicians  of  the  age;  as  much  a Phocion  as  Emmett  is  a 
Themistocles,  and  Webster  is  as  ambitious  as  Caesar.  He  will  not  be  outdone 
by  any  man,  if  it  is  within  the  compass  of  his  power  to  avoid  it.  It  will  be  a 
combat  worth  witnessing.  I have  the  last  speech,  and  have  yet  to  study  the 
cause;  but  I know  the  facts,  and  have  only  to  weave  the  argument.  Now,  if  you 
will  come  down,  you  will  kill  two  birds  with  one  stone.  We  will  first  feast  you, 
and  then  cure  you  and  send  you  home  a well  man.  Don’t  make  light  of  this 
proposition,  and  put  me  off  with  ‘ I wish  it  was  in  my  power.’  It  is  in  your 
power.  You  have  only  to  will  it,  and  it  is  done;  and  that  you  ought  to  will  it, 
heaven  and  earth  know.  If  you  do  not,  you  will  be  quite  as  much  to  blame  as 
the  man  who  kills  himself  with  strong  drink.  In  point  of  morality  there  will  be 
no  difference  between  you.  You  cannot  make  a sound  distinction  between  the 
two  cases  to  save  your  life.  So  do  the  thing  that  is  right,  and  give  us  none  of 
your  ' dish  maclaver,'  as  Burns  says.” 

It  has  been  too  often  said  of  the  great  American  orator,  that  he  was  a mere 
declaimer,  but  possessed  no  great  merits  as  a lawyer.  This  assertion  is  not  borne 
out  by  the  facts.  His  argument  in  the  present  case  is  an  example  of  clear,  well 
constructed  reasoning,  and  conclusive  as  an  argument.  The  peroration  in  reply 
to  Mr.  Emmett  is  a fine  specimen  of  the  finished  style  of  this  charming  and  ac- 
complished rhetorician,  and  has  often  been  quoted  as  a model  of  graceful  decla- 
mation. In  closing  the  argument  on  the  part  of  the  appellant,  Mr.  Wirt  said; 

May  it  please  your  Honors: — On  the  part  of  the  appellant, 
I trust  I shall  be  able  to  demonstrate  that  the  laws  of  the  State  of 
New  York  are  unconstitutional  and  void:  (ist.)  Because  they  are 
in  conflict  with  powers  exclusively  vested  in  Congress,  which  powers 
Congress  has  fully  exercised  by  laws  now  subsisting  and  in  full 
force.  (2d.)  Because,  if  the  powers  be  concurrent,  the  legislation 
of  the  State  is  in  conflict  with  that  of  Congress,  and  is,  therefore, 
void. 


4 


50 


ARGUMENT  OF  WILLIAM  WIRT 


The  powers  with  which  the  laws  of  New  York  conflict,  are  the 
power  “ to  promote  the  progress  of  science  and  the  useful  arts  by 
securing,  for  a limited  time,  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  inventions,"  and  the  power 
“ to  regulate  commerce  with  foreign  nations  and  among  the  several 
States."  If  these  powers  were  exclusive  in  Congress,  and  it  had 
exercised  them  by  subsisting  laws;  and  if  the  laws  of  New  York 
interfere  with  the  laws  of  Congress,  by  obstructing,  impeding,  re- 
tarding, burdening,  or  in  any  other  manner  controlling  their  opera- 
tion, the  laws  of  New  York  are  void,  and  the  judgment  of  the  State 
court,  founded  on  the  assumption  of  their  validity,  must  be  re-, 
versed. 

I.  Of  the  powers  vested  in  Congress,  and  the  rules  of 

CONSTRUCTION  APPLICABLE  THERETO. 

In  discussing  this  question,  the  general  principles  assumed  as 
postulates  on  the  other  side  may  be,  for  the  most  part,  admitted. 
Thus  it  may  be  admitted,  that  by  force  of  the  declaration  of  inde- 
pendence each  State  became  sovereign;  that  they  were,  then,  inde- 
pendent of  each  other,  and  foreign  to  each  other;  that,  by  virtue 
of  their  separate  sovereignty,  they  had,  each,  full  power  to  levy 
war,  to  make  peace,  to  establish  and  regulate  commerce,  to  en- 
courage the  arts,  and  generally  to  perform  all  other  acts  of  sover- 
eignty. I shall  also  concede  that  the  government  of  the  United 
States  is  one  of  delegated  powers,  and  that  it  is  one  of  enumerated 
powers,  as  contended  for  by  the  counsel  for  the  respondent.  Yet 
they  admitted  that  there  were  implied  powers,  and  have  given  a 
different  rule  for  the  construction  of  the  two  classes  of  powers, 
which  was,  that  “ the  express  powers  are  to  be  construed  strictly, 
the  implied  powers  liberally y The  implied  powers,  I presume, 
however,  are  only  those  which  are  necessary  and  proper  to  carry 
the  powers  expressly  given  into  effect.  They  are  the  means  to  an 
end.  This  clause  had  not  been  generally  regarded  as  in  fact  giv- 
ing any  new  powers.  Congress  would  have  had  them  without  the 
express  declaration.  The  clause  was  inserted  only  ex  abuiidanti 
cautela.  With  this  explanation  I shall  concede  that  the  Constitu- 
tion of  the  United  States  is  one  of  delegated  and  enumerated 
powers;  and  that  all  powers  not  delegated  by  the  Constitution  to 
the  national  government,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

The  peculiar  rule  of  construction  demanded  for  those  powers 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


51 


may  also  be  conceded.  But  the  express  powers  are  to  be  strictly 
construed;  the  implied  powers  are  to  be  construed  liberally.  By 
this  it  is  understood  to  be  meant,  that  Congress  can  do  no  more 
than  they  are  expressly  authorized  to  do;  though  the  means  of  doing 
it  are  left  to  their  discretion,  under  no  other  limit  than  that  they 
shall  be  necessary  and  proper  to  the  end. 

On  the  other  hand,  the  counsel  for  the  respondent  themselves 
admitted  that  Congress,  nevertheless,  has  some  exclusive  powers; 
and,  in  conformity  with  the  decisions  of  the  court,  they  admit  that 
those  exclusive  powers  exist  under  three  heads:  (i.)  When  the 
power  is  given  to  Congress  in  express  terms  of  exclusion.  (2.)  When 
a power  is  given  to  Congress,  and  a like  power  is  expressly  prohib- 
ited to  the  States.  (3.)  Where  a power  given  to  Congress  is  of 
such  a nature  that  the  exercise  of  the  same  power  by  the  States 
would  be  repugnant. 

With  regard  to  the  degree  of  repugnancy,  it  was  insisted  that 
the  repugnancy  must  be  manifest,  necessary,  unavoidable,  total  and 
direct.  Certainly,  if  the  powers  be  repugnant  at  all,  they  must  be 
so  with  all  these  qualifications.  If  Congress,  in  the  lawful  exercise 
of  its  power,  says  that  a thing  shall  be  done,  and  the  State  says  it 
shall  not;  or,  which  is  the  same  thing,  if  Congress  says  that  a thing 
shall  be  done  on  certain  terms,  and  the  State  says  it  shall  not  be 
done  except  on  certain  other  terms,  the  repugnancy  has  all  the 
epithets  which  can  be  lavished  upon  it,  and  the  State  law  must  be 
void  for  this  repugnancy. 

2.  Exclusive  and  concurrent  powers  tested  and  dis- 
tinguished. 

A new  test  for  the  application  of  this  third  head  of  exclusive 
power  has  been  proposed.  The  respondent  has  said  that  “ no  power 
can  be  exclusive  from  its  own  nature,  except  where  it  formed  no 
part  of  State  authority  previous  to  the  Constitution,  but  was  first 
created  by  the  Constitution  itself.”  But  why  were  these  national 
powers  thus  created  by  the  Constitution  1 Because  they  look  to 
the  whole  United  States  as  their  theatre  of  action.  And  are  not 
all  the  powers  given  to  Congress  of  the  same  character  ? Under 
the  power  to  regulate  commerce,  the  commerce  to  be  regulated  is 
that  of  the  United  States  with  foreign  nations,  among  the  several 
States,  and  with  the  Indian  tribes.  No  State  had  any  previous 
power  of  regulating  these.  The  same  thing  might  be  affirmed  of 


52 


ARGUMENT  OF  WILLIAM  WIRT 


all  the  other  powers  enumerated  in  the  Constitution.  They  were 
all  created  by  the  Constitution,  because  they  are  to  be  wielded  by 
the  whole  Union  over  the  whole  Union,  which  no  State  could  pre- 
viously do.  If  any  one  powerp  created  by  the  Constitution,  may  be 
exclusive  for  that  reason,  then  all  may  be  exclusive,  because  all  are 
originally  created.  If,  on  the  other  hand,  we  are  to  consider  the 
powers  enumerated  in  the  Constitution,  not  with  reference  to  the 
greater  arm  that  wields  them  and  the  more  extended  territory  over 
which  they  operate,  but  merely  in  reference  to  the  nature  of  the 
particular  power  in  itself  considered,  then,  according  to  this  new 
test,  all  the  powers  given  to  Congress  are  concurrent^  because  there 
is  no  one  power  given  to  it  which,  considered  in  this  light,  might 
not  have  been  previously  exercised  by  the  States  within  their  re- 
spective sovereignties. 

But  this  argument  proves  too  much;  for  it  has  been  conceded 
that  some  of  the  powers  are  exclusive  from  their  nature;  whereas, 
if  the  argument  were  true,  none  of  them  could  be  exclusive.  On 
this  argument  the  entire  class  or  head  of  exclusive  powers,  arising 
from  the  nature  of  the  power,  must  be  abolished.  But  this  court 
has  repeatedly  determined  that  there  is  such  a class  of  exclusive 
powers.  The  power  of  establishing  a uniform  rule  of  naturalization 
is  one  of  the  instances.  Its  exclusive  character  is  rested  on  the 
constitutional  requisition  that  the  rule  established  under  it  should 
be  uniform.^ 

But  the  objection  is  urged  that  this  would  have  been  a concur- 
rent power,  but  for  the  auxiliary  provision  in  the  Constitution  that  a 
citizen  of  one  State  shall  be  entitled  to  all  the  privileges  of  a citizen 
in  every  other  State.  We  answer,  that  it  is  not  so  determined  by 
the  court  in  the  case  cited,  and  that  the  commentators  on  the  Con- 
stitution place  it  exclusively  on  the  nature  of  the  power  as  described 
in  the  grant.  ^ 

So,  also,  the  power  of  establishing  uniform  laws  on  the  subject 
of  bankruptcies,  is  clearly  an  exclusive  power  from  its  nature.  The 
court  has,  indeed,  determined,  that  until  Congress  thought  fit  to 
exercise  the  power,  the  States  might  pass  local  bankrupt  laws,  pro- 
vided they  did  not  impair  the  obligation  of  contracts;  but  that,  as 
soon  as  Congress  legislate  on  the  subject,  the  power  of  the  States  is 
at  an  end. 

* Chirac  v,  Chirac,  2 Wheat.  R.  269. 

’ The  Federalist,  No.  42. 

* Sturges  V.  Crowninshield,  4 Wheat.  R.  122. 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


53 


3.  The  power  of  a State  may  be  taken  away  by  implica- 
tion.— Repugnancy  and  occasional  inter- 
ference DISTINGUISHED. 

But  it  has  been  said  that  this  doctrine  takes  away  State  power 
by  implication,  which  is  contrary  to  the  principles  of  interpretation 
laid  down  by  the  commentators  on  the  Constitution.  It  was  not 
the  opinion  of  the  authors  of  the  Fede7'alist,  that  a State  power 
could  not  be  alienated  by  implication.  Their  doctrine  was,  that  it 
might  be  alienated  by  implication,  provided  the  implication  be  in- 
evitable; and  that  it  is  inevitable  wherever  a direct  and  palpable 
repugnancy  exists.  The  distinction  between  repugnancy  and  occa- 
sional interference  is  manifest.  The  occasional  interference  alluded 
to  in  the  Federalist^  and  admitted  by  this  court  in  its  adjudications, 
is  not  a repugnancy  between  the  powers  themselves;  it  is  a mere 
incidental  interference  in  the  operation  of  powers  harmonious  in 
themselves.  The  case  put  was  of  a tax  laid  by  Congress  and  a tax 
laid  by  the  State  upon  the  same  subject,  e.  g.,  on  a tract  of  land. 
The  taxes  operate  upon,  and  are  to  be  satisfied  out  of  the  same 
subject.  It  might  be  inconvenient  to  the  proprietor  to  pay  both 
taxes.  In  an  extreme  case,  the  subject  might  be  inadequate  to 
the  satisfaction  of  both.  Then  the  tax  laid  by  the  paramount  au- 
thority must  be  first  satisfied.  Still  this  incidental  interference  in 
their  operation  is  not  an  inherent  repugnance  in  the  nature  of  the 
powers  themselves. 

It  has  also  been  said,  that  to  constitute  the  power  an  exclusive 
one  in  Congress,  the  repugnancy  must  be  such  that  the  State  can 
pass  no  law  on  the  subject  which  will  not  be  repugnant  to  the 
power  given  to  Congress. 

This  requires  qualification  before  it  can  be  admitted.  Some 
subjects  are,  in  their  nature,  extremely  multifarious  and  complex. 
The  same  subject  may  consist  of  a great  variety  of  branches,  each 
extending  itself  into  remote,  minute  and  infinite  ramifications.  One 
branch  alone  of  such  a subject  might  be  given  exclusively  to  Con- 
gress (and  the  power  is  exclusive  only  so  far  as  it  is  granted),  yet 
on  other  branches  of  the  same  subject  the  States  may  act,  without 
interfering  with  the  power  exclusively  granted  to  Congress.  Com- 
merce is  such  a subject.  It  is  so  complex,  multifarious  and  in- 
definite, that  it  would  be  extremely  difficult,  if  not  impracticable, 
to  make  a digest  of  all  the  operations  which  belong  to  it.  One  or 
more  branches  of  this  subject  might  be  given  exclusively  to  Con- 


54 


ARGUMENT  OF  WILLIAM  WIRT 


gress;  the  others  may  be  left  open  to  the  States.  They  may,  there- 
fore, legislate  on  commerce,  though  they  cannot  touch  that  branch 
which  is  given  exclusively  to  Congress. 

So  Congress  has  the  power  to  promote  the  progress  of  science 
and  the  useful  arts,  but  only  in  one  mode,  viz.,  by  securing,  for  a 
limited  time,  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries.  This  might  be  an  exclusive 
power,  and  was  contended  to  be  so.  Yet  there  are  a thousand  other 
modes  in  which  the  progress  of  science  and  the  useful  arts  may  be 
promoted,  as  by  establishing  and  endowing  literary  and  philosophi- 
cal societies,  and  many  others  which  might  be  mentioned.  Hence, 
notwithstanding  this  particular  exclusive  grant  to  Congress  of  one 
mode  of  promoting  the  progress  of  science  and  the  useful  arts,  the 
States  may  rightfully  make  many  enactments  on  the  general  sub- 
ject, without  any  repugnance  with  the  peculiar  grant  to  Congress. 

4,  Why  the  power  to  promote  the  progress  of  science  was 

VESTED  EXCLUSIVELY  IN  CONGRESS. 

But,  to  come  now  to  the  question  whether  these  State  laws  be  re- 
pugnant to  this  grant  of  power,  we  must  first  inquire  why  it  was 
conferred  on  Congress.  Why  was  it  thought  a matter  of  sufficient 
importance  to  confer  this  power  upon  the  national  government  ? 
The  answer  to  this  question  will  be  found  in  the  history  of  the 
country,  in  the  nature  of  our  institutions,  and  the  great  national 
objects  which  the  Constitution  had  in  view.  The  country  was  in 
its  infancy;  its  population  was  small,  its  territory  immense;  it  had 
recently  thrown  off  its  bondage  by  the  war  of  the  revolution,  and 
was  left  exhausted  and  poor — poor  in  everything  but  virtue  and  the 
love  of  country.  It  was  still  dependent  on  the  arts  of  Europe  for 
all  the  comforts  and  almost  all  the  necessaries  of  life.  We  had 
hardly  any  manufactures,  science  or  literature  of  our  own.  Our 
statesmen  saw  the  great  destiny  which  was  before  the  nation,  but 
they  saw  also  the  necessity  of  exciting  the  energies  of  the  people, 
of  invoking  the  genius  of  invention,  and  of  creating  and  diffusing 
the  lights  of  science.  These  were  objects  in  which  the  whole  na- 
tion was  concerned,  and  were,  therefore,  naturally  and  properly 
confided  to  the  national  government.  The  States,  indeed,  might 
have  exercised  their  inherent  power  of  legislating  on  this  subject; 
but  their  sphere  of  action  was  comparatively  small;  their  regula- 
tions would  naturally  have  been  various  and  conflicting.  Dis- 
couragement and  discontent  would  have  arisen  in  some  States  from 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


55 


the  superior  privileges  conferred  on  the  works  of  genius  in  others; 
contests  would  have  ensued  among  them  on  the  point  of  the  origi- 
nality of  invention;  and  laws  of  retortion  and  reprisal  would  have  fol- 
lowed. All  these  difficulties  would  be  avoided  by  giving  the  power 
to  Congress,  and  giving  it  exclusively  of  the  States.  If  it  were 
wisely  exerted  by  Congress,  there  could  be  no  necessity  for  a con- 
current exercise  of  the  power  by  the  States. 

5.  The  grant  from  its  nature  exclusive,  not  concurrent. 

The  terms  of  the  grant  are:  “ Congress  shall  have  power  to  pro- 
mote the  progress  of  science  and  the  useful  arts,  by  securing,  for  a 
limited  time,  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries.”  This  exclusive  right  is  to  be 
co-extensive  with  the  territory  of  the  Union.  The  laws  to  be  made 
for  securing  it  must  be  uniform,  and  must  extend  throughout  the 
country.  The  exclusive  nature  of  every  power  is  to  be  tested  by 
the  character  of  the  acts  which  Congress  is  to  pass.  This  is  the 
case  with  the  naturalization  laws.  The  exclusiveness  of  the  power 
to  establish  them  resulted  from  their  character  of  uniformity.  So 
here,  the  exclusiveness  results  from  the  character  of  the  right  which 
they  are  to  confer.  It  is  to  be  exclusive.  It  is  not,  indeed,  said 
that  Congress  shall  have  the  exclusive  power,  but  it  is  said  that 
they  shall  have  power  to  do  a certain  act,  which,  when  done,  shall 
be  exclusive  in  its  operation.  The  power  to  do  such  an  act  must 
be  an  exclusive  power.  It  can,  in  the  nature  of  things,  be  per- 
formed only  by  a single  hand.  Is  not  the  power  of  one  sovereign 
to  confer  exclusive  rights  on  a given  subject,  within  a certain  terri- 
tory, inconsistent  with  a power  in  another  independent  sovereign, 
to  confer  exclusive  rights  on  the  same  subject,  in  the  same  terri- 
tory ? Do  not  the  powers  clash  ? The  right  to  be  conferred  by 
Congress  is  to  exclude  all  other  rights  on  the  subject  in  the  United 
States;  New  York  being  one  of  those  States.  The  right  to  be  con- 
ferred by  New  York  is  to  exclude  all  other  rights  on  the  subject 
within  the  State  of  New  York.  That  one  right  may  exclude  an- 
other is  perfectly  intelligible;  but  that  two  rights  should  recipro- 
cally exclude  each  other,  and  yet  both  continue  to  subsist  in  perfect 
harmony,  is  inconceivable.  Can  a concurrent  power  exist,  if, 
from  the  very  nature  of  its  action,  it  must  take  away,  or  render 
nugatory,  the  power  given  to  Congress  ? Supposing  the  power  to 
be  concurrent.  Congress  may  secure  the  right  for  one  period  of 


56 


ARGUMENT  OF  WILLIAM  WIRT 


time,  and  the  respective  States  for  another.  Congress  may  secure 
it  for  the  whole  Union,  and  each  State  may  secure  it  to  a different 
claimant  for  its  own  territory.  Congress  possesses  the  power  of 
granting  an  exclusive  right  to  authors  and  inventors  within  the 
United  States.  New  York  claims  the  power  to  grant  such  exclu- 
sive right  within  that  State.  An  author  or  inventor  in  that  State 
may  take  a grant  for  a period  of  time  far  longer  than  that  allowed 
by  the  act  of  Congress.  He  may  take  a similar  grant  from  every 
other  State  in  the  Union;  and  thus  this  pretended  concurrent 
power  supersedes,  abrogates  and  annuls  the  power  of  Congress. 
What  would  become  of  the  power  of  Congress  after  the  whole 
sphere  of  its  action  was  taken  away  by  this  concurrent  power  of 
the  States  ? Who  would  apply  to  the  pov/er  of  Congress  for  a patent 
or  a copyright,  while  the  States  held  up  higher  privileges  ? This 
concurrent  legislation  would  degenerate  into  advertisements  for 
custom.  These  powers  would  be  in  the  market,  and  the  highest 
bidder  would  take  all.  Are  not  powers  repugnant,  when  one  may 
take  from  the  other  the  whole  territory  on  which  alone  it  can  act  ? 
Is  not  the  repugnance  such  as  to  annihilate  the  power  of  Congress 
as  completely  as  if  the  whole  Union  was  itself  annihilated? 

Something  has  been  said  of  Congress  repealing  the  laws  of  the 
State,  wherever  they  should  conflict  with  those  of  the  Union.  But 
where  is  this  power  of  repeal  ? There  is  no  such  head  of  power  in 
the  Constitution.  Congress  can  act  only  by  positive  legislation  on 
any  subject,  and  this  it  has  done  in  the  present  instance.  But  this 
action  would  be  in  vain,  if  another  authority  can  act  on  the  same 
subject.  If  this  concurrent  power  would  defeat  the  power  of  Con- 
gress, by  withdrawing  from  it  the  whole  territory  on  which  it  is  to 
act,  it  would  also  defeat  it  by  giving  a monopoly  of  all  the  elements 
with  which  invention  is  to  work.  This  has  been  done  by  these 
laws  as  to  fire  and  steam.  Why  should  it  not  be  done  equally  with 
all  the  other  elements,  such  as  gravitation,  magnetism,  galvanism, 
electricity,  and  others?  What  is  to  consecrate  these  agents  of 
nature,  and  secure  them  from  State  monopoly,  more  than  fire  or 
steam  ? If  not,  then  is  the  power  of  Congress  subject  to  be  de- 
feated by  this  concurrent  power,  first  by  a monopoly  of  all  the  ter- 
ritory on  which  it  can  act,  and  then  by  a monopoly  of  all  the  ele- 
ments and  natural  agents  on  which  invention  can  be  exerted.  Still, 
it  will  be  said  that  there  is  no  direct  repugnance  between  these 
powers,  and  that  the  power  of  Congress  may  still  act.  But  on  what 
can  it  act  ? The  territory  is  gone,  and  all  the  powers  of  invention 


IN’  THE  CASE  OF  GIBBONS  v.  OGDEN. 


57 


are  appropriated.  There  is  no  difference  whatever  between  a direct 
enactment  that  the  law  of  Congress  shall  have  no  operation  in  New 
York,  and  enactments  which  render  that  operation  impossible.  If, 
then,  this  process  of  reasoning  be  correct,  the  inevitable  conclusion 
from  it  is,  that  a power  in  the  States  to  grant  exclusive  patents  is 
utterly  inconsistent  with  the  power  given  to  the  national  govern- 
ment to  grant  such  exclusive  patents;  and  hence,  that  the  power 
given  to  Congress  is  one  which  is  exclusive  from  its  nature. 

6.  The  power,  even  if  concurrent,  is  repugnant  to  the 
LAWS  OF  Congress. 

But  suppose,  for  the  sake  of  the  argument,  that  the  States  have 
this  concurrent  power,  yet  it  cannot  be  denied,  that  if  the  legisla- 
tion of  the  State  be  repugnant  to  the  laws  of  Congress,  that  of  the 
State  is  void,  so  far  as  the  repugnance  exists.  In  the  present  case 
the  repugnance  is  manifest.  The  law  of  Congress  declares,  that  all 
inventors  of  useful  improvements  throughout  the  United  States, 
shall  be  entitled  to  the  exclusive  right  in  their  discoveries  for  four- 
teen years  only.  The  law  of  New  York  declares,  that  this  inventor 
shall  be  entitled  to  the  exclusive  use  of  his  discovery  for  thirty 
years,  and  as  much  longer  as  the  State  shall  permit.  The  law  of 
Congress,  by  limiting  the  exclusive  right  to  fourteen  years,  in  effect 
declares,  that  after  the  expiration  of  that  time  the  discovery  shall 
be  the  common  right  of  the  whole  people  of  the  United  States. 
The  law  of  New  York  declares  that  it  shall  not,  after  fourteen 
years,  be  the  exclusive  right  of  the  people  of  the  United  States, 
but  that  it  shall  be  the  exclusive  right  of  this  inventor  for  thirty 
years,  and  for  so  much  longer  as  she,  in  her  sovereign  will  and 
pleasure,  may  permit.  If  this  be  not  repugnance,  direct  and  palpa- 
ble, we  must  have  a new  vocabulary  for  the  definition  of  the  word. 

But  it  was  said,  that  the  appellant  had  no  patent  under  the 
United  States,  and,  therefore,  could  not  raise  the  question.  To 
this  I answer,  it  was  not  necessary  that  he  should  have  a patent. 
The  question  as  to  the  validity  of  the  law  of  New  York  is  raised 
whenever  a right  is  asserted  under  that  law  and  is  resisted  by  the 
party  against  whom  it  is  asserted;  and  that  validity  is  to  be  tested, 
not  by  comparing  the  law  of  New  York  with  a patent,  but  by  com- 
paring it  with  the  Constitution  and  laws  of  the  United  States. 

It  was  also  said,  that  there  could  be  no  repugnance,  because  it 
was  admitted  that  wherever  a patent  from  the  United  States  ap- 
pears, the  patent  obtained  under  the  State  law  must  yield  to  it;  that 
the  patent  under  the  State  is  valid  only  until  the  patent  from 


58 


ARGUMENT  OF  WILLIAM  WIRT 


the  paramount  power  appears;  and  that  the  rights  derived  from 
the  different  sovereigns  must  be  found  practically  to  clash  before 
the  law  of  New  York  was  to  give  way  for  repugnancy.  This  is  an 
insidious  argument,  and  fraught  with  all  the  dangers  which  have 
been  enumerated.  For  if  the  New  York  patentee  be  the  inventor, 
the  law  of  New  York  is  absolute,  and  however  unconstitutional  it 
may  be,  there  is  no  power  of  resistance.  Besides,  the  argument  is 
incorrect.  To  illustrate  this,  suppose  a grant  from  Virginia,  with- 
in the  military  reservation  of  Ohio,  after  she  had  ceded  the  whole 
territory  to  the  United  States;  would  the  party  in  possession,  even 
if  a mere  intruder,  be  bound  to  show  a grant  from  the  United 
States  before  he  could  resist  the  unlawful  grant  of  Virginia  ? But 
there  the  plaintiff  would  be  claiming  under  a State  which  had  pre- 
viously ceded  away  the  power  to  make  such  grants,  which  is  pre- 
cisely the  case  here,  so  that  there  need  be  no  repugnance  arising 
from  patents.  If  a repugnance  exist  between  the  laws  of  New 
York  and  the  Constitution  and  laws  of  the  United  States,  any  citi- 
zen of  the  United  States  has  a right  to  act  as  if  the  law  of  New 
York  were  a nullity;  and  the  question  of  its  nullity  and  validity 
arises  wherever  an  attempt  is  made  to  enforce  it. 

7.  The  term  ‘‘possessors,”  as  used  in  the  State  statute, 

AN  EVASION. 

But  it  was  argued  that  the  power  of  Congress  is  limited  to  in- 
ventors, and  that  the  power  to  encourage  by  patents  the  introduc- 
tion of  foreign  discoveries,  stands  clear  of  this  constitutional  grant. 
If  it  were  necessary,  this  doctrine  might  be  questioned.  The  stat- 
ute of  the  2 1 St  James  I,  c.  3,  uses  the  same  word  with  the  Constitu- 
tion, “inventors;”  and  the  decisions  upon  the  construction  of  this 
statute  might  be  referred  to,  in  order  to  show  that  it  has  been  con- 
sidered as  embracing  discoveries  imported  from  abroad.^  But,  even 
acceding  to  this  doctrine,  I may  ask  whether  the  question  now  be- 
fore the  court  has  anything  to  do  with  an  art,  machine  or  improve- 
ment imported  from  abroad  ? The  privilege  here  granted  by  the 
State  is  to  an  American  citizen  who  claims  to  be  the  inventor. 
The  privilege  is  the  reward  of  invention,  not  of  importation,  and 
this  it  is  which  brings  it  in  conflict  with  the  act  of  Congress.  It  is 
true,  the  law  does  not  call  him  the  inventor;  it  calls  him  merely  the 
“possessor.”  But  can  the  Constitution  and  laws  of  the  United 
States  be  evaded  in  this  manner  ? If  he  was  not  the  inventor,  why 


^ 17  Vin.  211. 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


59 


this  unjust  tax  which  has  been  levied  upon  our  admiration'  and 
gratitude  ? When  the  validity  of  a law  is  challenged  for  a fraudu- 
lent evasion  of  the  rights  of  others,  you  are  not  bound  by  its  own 
averments,  but  may  resort  to  proof  aliunde  to  establish  the  facts. 
The  word  possessor  is  a new  and  unusual  word  to  apply  to  such  a 
case,  and  marks  a studious  effort  to  conceal  the  truth.  He  was,  of 
necessity,  either  the  inventor  or  the  importer.  If  he  was  the  im~ 
porter^  there  is  no  conceivable  reason  why  he  should  be  called  by 
any  other  than  that  name.  The  Legislature  of  New  York,  in  its 
act  in  behalf  of  Fitch,  passed  before  the  adoption  of  the  Constitu- 
tion, had  no  difficulty  in  applying  the  natural  and  appropriate  name 
to  him.  But  when  the  final  law  was  passed  in  favor  of  Livingston 
and  Fulton,  in  1798,  the  Constitution  of  the  United  States,  which 
cedes  this  power  to  Congress,  had  been  adopted,  and  the  laws  by 
which  that  power  is  executed  had  been  passed.  This  Constitution 
and  these  laws  used  the  term  inventors.  But  the  privilege  was  too 
short.  The  State  of  New  York  offered  better  terms.  The  only 
difficulty  was  to  give  them  effect  without  encroaching  upon  that 
power  which  had  been  constitutionally  exercised  by  Congress.  It 
would  not  do  to  call  them  inventors.,  and  the  device  was  adopted  of 
calling  him  merely  the  possessor^  which  was  a manifest  evasion  of 
the  law  of  Congress. 

8.  Nature  and  character  of  the  patent  laws. 

But  it  was  contended  that  the  patent  laws  of  the  United  States 
give  no  right;  they  only  secure  a pre-existing  right  at  common  law. 
What,  then,  do  these  statutes  accomplish  ? If  they  do  nothing 
more  than  give  the  inventor  a chattel  interest  in  his  invention,  and 
a remedy  for  its  violation,  he  had  these  at  common  law.  And  if 
they  only  give  him  a mere  right  to  use  his  invention  in  the  States, 
with  their  permission,  he  had  that  before.  The  case  of  Millar  v. 
Taylor  proves  the  right  to  have  been  perfect  at  common  law.  The 
time  of  enjoyment  was  far  greater.  Thompson’s  Seasons  had  been 
published  forty  years  when  that  action  was  brought.  If  the  patent 
and  copyright  laws  were  merely  intended  to  secure  an  exclusive 
right  throughout  the  United  States,  and  are,  in  fact,  a limitation  on 
the  common  law  right  (as  was  contended  by  the  respondent’s  coun- 
sel), when  this  right  has  been  thus  secured  throughout  the  United 
States,  and  a limitation  constitutionally  put  upon  it  by  Congress, 
can  a State  interfere  with  this  regulation  ? The  limitation  is  not 
for  the  advantages  of  the  inventor,  but  of  society  at  large,  which  is 


60 


ARGUMENT  OF  WILLIAM  WIRT 


to  take  the  benefit  of  the  invention  after  the  period  of  limitation 
has  expired.  The  patentee  pays  a duty  on  his  patent,  which  is  an 
effective  source  of  revenue  to  the  United  States.  It  is  virtually  a 
contract  between  each  patentee  and  the  people  of  the  United 
States,  by  which  the  time  of  exclusive  and  secure  enjoyment  is  lim- 
ited, and  then  the  benefit  of  the  discovery  results  to  the  public.  A 
State  cannot,  by  its  local  laws,  defeat  this  resulting  interest  of  the 
whole  Union. 

But  it  was  said,  that  a State  might  prohibit  the  use  of  a patented 
machine  if  it  be  noxious  to  the  health  of  its  citizens,  or  of  an  im- 
moral or  impious  book,  the  copyright  of  which  had  been  secured. 
The  answer  to  all  such  arguments  was,  that  it  will  be  time  enough 
to  consider  such  questions  when  they  arise.  The  constitutional  power 
of  Congress  is  to  patent  useful  discoveries.  The  patent  authorizes 
the  patentee  to  use  his  invention,  and  it  is  the  use  which  is  secured. 
When  a discovery  is  deemed  useful  by  the  national  government, 
and  a patent  shall  issue  authorizing  the  patentee  to  use  it  through- 
out the  United  States,  and  the  patentee  shall  be  obstructed  by  a 
State  in  the  exercise  of  this  right,  on  the  ground  that  the  discovery 
is  useless  and  dangerous,  it  will  be  time  enough  to  consider  the 
power  of  the  States  to  defeat  the  exercise  of  the  right  on  this 
ground.  But  this  is  not  the  question  before  the  court.  It  might 
be  admitted  that  a State  has  authority  to  prohibit  the  use  of  a pat- 
ented machine  on  that  ground,  or  of  a book,  the  copyright  of  which 
had  been  secured,  on  the  ground  of  its  impiety  or  immorality.  But 
the  laws  which  are  now  in  judgment  were  not  passed  upon  any 
such  ground.  The  question  raised  by  them  is,  can  the  States  ob- 
struct the  operation  of  an  act  of  Congress  by  taking  the  power 
from  the  national  legislature  into  their  own  hands  ? Can  they  pro- 
hibit the  publication  of  an  immoral  book,  licensed  by  Congress,  on 
the  pretext  of  its  immorality,  and  then  give  an  exclusive  right  to 
publish  the  same  book  themselves  ? Can  they  prohibit  the  use  of 
an  invention  on  the  ground  of  its  noxiousness,  and  then  authorize 
the  exclusive  use  of  the  same  invention  by  their  own  law  ? 

But  there  is  no  pretext  of  noxiousness  here.  The  authority  to 
enact  these  laws  is  taken  up  under  a totally  distinct  head  of  State 
power.  It  is  the  sovereign  power  to  grant  exclusive  privileges  and 
create  monopolies,  the  Constitution  and  laws  of  the  United  States 
to  the  contrary  notwithstanding.  This  is  the  real  power  under 
which  these  laws  are  defended;  and  it  may  perplex,  although  it 
cannot  enlighten  the  discussion,  to  confound  it  with  another  and  a 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


61 


distinct  head  of  State  power.  If  then  the  power  of  securing  to 
authors  and  inventors  the  use  of  their  writings  and  discoveries  be 
exclusively  vested  in  Congress,  the  acts  of  New  York  are  void,  be- 
cause they  are  founded  on  the  exercise  of  the  same  power  by  the 
State.  And  if  the  power  be  concurrent,  these  acts  are  still  void, 
because  they  interfere  with  the  legislation  of  Congress  on  the  same 
subject. 

9.  The  laws  of  New  York  conflict  with  the  power  of 
Congress  to  regulate  commerce. 

These  laws  were  also  void,  because  they  interfere  with  the  power 
given  to  Congress,  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States.  This  nullity  of  the  State  laws  will  be 
supported,  first,  upon  the  ground  of  the  power  being  exclusive  in 
Congress;  and,  secondly,  that,  if  concurrent,  these  laws  directly  in- 
terfered with  those  of  Congress  on  the  same  subject. 

That  this  power  is  exclusive  is  manifest  from  the  fact  that  the 
commerce  to  be  regulated  is  that  of  the  United  States;  the  govern- 
ment by  which  it  is  to  be  regulated  is  also  that  of  the  United 
States;  and  the  subject  itself  is  one  undivided  subject.  It  is  an 
entire,  regular  and  uniform  system  which  is  to  be  carried  into  effect, 
and  will  not  admit  of  the  participation  and  interference  of  another 
hand.  Does  not  regulation,  ex  vi  termini,  imply  harmony  and  uni- 
formity of  action  ? If  this  must  be  admitted  to  be  the  natural  and 
proper  force  of  the  term,  let  us  suppose  that  the  additional  term, 
uniform,  had  been  introduced  into  the  Constitution,  so  as  to  pro- 
vide that  Congress  should  have  power  to  make  uniform  regulations 
of  commerce  throughout  the  United  States.  Then,  according  to 
the  adjudications  on  the  power  of  establishing  a uniform  rule  of 
naturalization,  and  uniform  laws  of  bankruptcy,  throughout  the 
United  States,  this  power  would  unquestionably  have  been  exclu- 
sive in  Congress.  But  regulation  of  that  commerce  which  pervades 
the  Union,  necessarily  implies  uniformity,  and  the  same  result, 
therefore,  follows  as  if  the  word  had  been  inserted. 

10.  Distinction  as  to  quarantine  and  police  regulations. 

With  regard  to  the  quarantine  laws,  and  other  regulations  of 
police  respecting  the  public  health  in  the  several  States,  they  do 
not  partake  of  the  character  of  regulations  of  the  commerce  of  the 
United  States.  It  has  been  said  that  these  local  regulations  were 
recognized  by  Congress,  which  had  made  them  a part  of  its  own 


62 


ARGUMENT  OF  WILLIAM  WIRT 


system  of  commerce.  But  this  recognition  would  have  been  super- 
fluous, if  they  could  have  stood  without  it  on  the  basis  of  State 
sovereignty;  and  so  far  as  their  adoption  by  Congress  can  be  con- 
sidered as  affecting  the  question,  the  manner  and  purpose  of  the 
recognition  operates  the  other  way.  It  will  be  found  that,  by 
the  commercial  regulations  which  Congress  has  made,  a general 
system  is  adopted,  which,  if  executed  in  every  instance,  shall  carry 
ships  and  vessels  into  all  the  ports  of  the  several  States,  their  local 
quarantine  laws  to  the  contrary  notwithstanding.  An  express  reg- 
ulation is,  therefore,  introduced,  requiring  the  collectors  of  the  cus- 
toms to  conform  the  execution  of  their  official  duties,  under  the 
navigation  and  revenue  laws,  with  the  quarantine  laws  of  the  re- 
spective States.  Without  such  a provision,  the  local  health  laws 
must  give  way  to  the  supremacy  of  the  navigation  and  revenue  laws 
of  the  Union. 

A serious  objection  to  the  exclusive  nature  of  this  power  of 
regulating  commerce  is  supposed  to  arise  from  the  express  prohibi- 
tions on  the  States,  contained  in  the  loth  section  of  the  ist  article 
of  the  Constitution.  It  has  been  considered  that  these  prohibitions 
imply  that,  as  to  everything  not  prohibited,  the  power  of  the  State 
was  meant  to  be  reserved,  and  the  authority  of  the  authors  of  the 
Federalist  was  cited  in  support  of  this  interpretation.  But  another 
commentator  of  hardly  less  imposing  authority,  and  writing,  not  as 
a polemic  for  the  purpose  of  vindicating  the  Constitution  against 
popular  objections,  but  for  the  mere  purpose  of  didactic  instruc- 
tion as  a professor,  with  this  section  before  him,  and  with  a strong 
leaning  towards  State  pretensions,  considers  the  power  to  regulate 
commerce  as  an  exclusive  power.’  But  the  difference  between  them 
is  rather  in  appearance  than  in  reality.  It  does  not  appear  that 
the  author  of  that  number  of  the  Federalist  did  himself  consider 
these  police  regulations  as,  properly  speaking,  regulations  of  the 
commerce  of  the  Union.  But  the  objectors  to  the  Constitution 
had  presented  them  as  such,  and  his  argument  in  substance  is,  that 
if  they  are,  the  Constitution  does  not  affect  them.  The  other 
commentator  did  not  consider  them  as  regulations  of  the  commerce 
of  the  United  States;  for  if  he  did,  he  could  not  admit  them,  as  he 
did,  to  be  left  in  the  States,  and  yet  hold  the  opinion  that  the 
power  to  regulate  commerce  was  exclusively  vested  in  Congress. 
But  may  not  a reason  for  these  prohibitions  be  found,  in  the  recent 
experience  of  the  country,  very  different  from  that  which  has  here- 
^ Tucker’s  Blackstone,  Pt.  I,  Appx.  i8o. 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


63 


tofore  been  assigned  for  them.  The  acts  prohibited  were  precisely 
those  which  the  States  had  been  passing,  and  which  mainly  led  to 
the  adoption  of  the  Constitution.  The  section  might  have  been 
inserted  ex  abundanti  cautela.  Or  the  convention  might  have 
regarded  the  previous  clause,  which  grants  the  power  to  regulate 
commerce  as  exclusive  throughout  the  whole  subject;  and  this  sec- 
tion might  have  been  inserted  to  qualify  its  exclusive  character,  so 
far  as  to  permit  the  States  to  do  the  things  mentioned,  under  the 
superintendence  and  with  the  consent  of  Congress.  If  either  or 
both  of  these  motives  combined  for  inserting  the  clause,  the  in- 
ference which  had  been  drawn  from  it  against  the  exclusive  power 
of  Congress  to  regulate  commerce,  would  appear  to  be  wholly  un- 
warranted. 

But  if  these  police  regulations  of  the  States  are  to  be  consid- 
ered as  a part  of  the  immense  mass  of  commercial  powers,  is  not 
the  subject  susceptible  of  division,  and  may  not  some  portions  of 
it  be  exclusively  vested  in  Congress?  It  was  viewing  the  subject 
in  this  light  that  induced  my  learned  associate'  to  assume  the  posi- 
tion which  has  been  misconceived  on  the  other  side.  This  propo- 
sition was,  not  that  all  the  commercial  powers  are  exclusive,  but 
that,  those  powers  being  separated,  there  are  some  which  are  ex- 
clusive in  their  nature;  and  among  them  is  that  power  which  con- 
cerns navigation,  and  which  prescribes  the  vehicles  in  which  com- 
merce shall  be  carried  on. 

It  is,  however,  immaterial,  so  far  as  this  case  was  concerned, 
whether  the  power  of  Congress  to  regulate  commerce  be  exclusive 
or  concurrent.  Supposing  it  to  be  concurrent,  it  could  not  be 
denied  that  where  Congress  has  legislated  concerning  a subject  on 
which  it  is  authorized  to  act,  all  State  legislation  which  interferes 
with  it  is  absolutely  void. 

II.  The  coasting  trade  protected  by  the  laws  of 
Congress. 

It  is  not  denied  that  Congress  has  power  to  regulate  the  coast- 
ing trade.  It  is  not  denied  that  Congress  has  regulated  it.  If  the 
vessel  now  in  question  was  sailing  under  the  authority  of  these 
regulations,  and  has  been  arrested  by  a law  of  New  York  forbidding 
her  sailing,  the  State  law  must,  of  necessity,  be  void.  The  coast- 
ing trade  did,  indeed,  exist  before  the  Constitution  was  adopted;  I 
might  safely  admit  that  it  existed  by  the  jus  commune  of  nations; 


* Mr.  Webster. 


64 


ARGUMENT  OF  WILLIAM  WIRT 


that  it  existed  by  an  imperfect  right;  and  that  the  States  might 
prohibit  or  permit  it  at  their  pleasure,  imposing  upon  it  any  regula- 
tions they  thought  fit,  within  the  limits  of  their  respective  territorial 
jurisdictions.  But  those  regulations  were  as  various  as  the  States, 
continually  conflicting,  and  the  source  of  perpetual  discord  and 
confusion.  In  this  condition  the  Constitution  found  the  coasting 
trade.  It  was  not  a thing  which  required  to  be  created,  for  it  al- 
ready existed.  But  it  was  a thing  which  demanded  regulation,  and 
the  power  of  regulating  it  was  given  to  Congress.  They  acted 
upon  it  as  an  existing  subject,  and  regulated  it  in  an  uniform  manner 
throughout  the  Union.  After  this  regulation  it  was  no  longer  an 
imperfect  right,  subject  to  the  future  control  of  the  States.  It  be- 
came a perfect  right,  protected  by  the  laws  of  Congress,  with 
which  the  States  had  no  authority  to  interfere.  It  was  for  the  very 
purpose  of  putting  an  end  to  this  interference,  that  the  power  was 
given  to  Congress;  and  if  they  still  have  a right  to  act  upon  the 
subject,  the  power  was  given  in  vain.  To  say  that  Congress  shall 
regulate  it,  and  yet  to  say  that  the  States  shall  alter  these  regula- 
tions at  pleasure,  or  disregard  them  altogether,  would  be  to  say,  in 
the  same  breath,  that  Congress  shall  regulate  it  and  shall  not  regu- 
late it;  to  give  the  power  with  one  hand,  and  to  take  it  back  with 
the  other.  By  the  acts  for  regulating  the  coasting  trade.  Congress 
has  defined  what  shall  be  required  to  authorize  a vessel  to  trade 
from  port  to  port;  and  in  this  definition  not  one  word  is  said  as  to 
whether  it  is  to  be  moved  by  ‘sails  or  by  fire;  whether  it  carries 
passengers  or  merchandise.  The  license  gives  the  authority  to  sail, 
without  any  of  those  qualifications. 

That  the  regulation  of  commerce  and  navigation  includes  the 
authority  of  regulating  passenger  vessels  as  well  as  others,  would 
appear  from  the  most  approved  definitions  of  the  term  commerce. 
It  always  implies  intercommunication  and  intercourse.  This  is  the 
sense  in  which  the  Constitution  uses  it;  and  the  great  national  ob- 
ject was  to  regulate  the  terms  on  which  intercourse  between  foreign- 
ers and  this  country,  and  between  the  different  States  of  the  Union, 
should  be  carried  on.  If  freight  be  the  test  of  commerce,  this  ves- 
sel was  earning  freight;  for  what  is  freight  but  the  compensation 
paid  for  the  use  of  a ship  ? The  compensation  for  the  carrying  of 
passengers  may  be  insured  as  freight.  The  whole  subject  is  regu- 
lated by  the  general  commercial  law;  and  Congress  has  superadded 
special  regulations  applicable  to  vessels  employed  in  transporting 
passengers  from  Europe.  In  none  of  the  acts  regulating  the  navi- 


IN  THE  CASE  OF  GIBBONS  v.  OGDEN. 


65 


gation  of  the  country,  whether  employed  in  the  foreign  or  coasting 
trade,  has  any  allusion  been  made  to  the  kind  of  vehicles  employed, 
further  than  the  general  description  of  ships  or  vessels,  nor  to  the 
means  or  agents  by  which  they  were  propelled. 

12.  Peroration. — Reply  to  Mr.  Emmett. 

In  conclusion,  I observe  that  my  learned  friend  (Mr.  Emmett) 
has  eloquently  personified  the  State  of  New  York,  casting  her  eyes 
over  the  ocean,  witnessing  everywhere  this  triumph  of  her  genius, 
and  exclaiming,  in  the  language  of  .^neas: 

“ Quae  regio  in  terris,  nostri  non  plena  laboris?” 

Sir,  it  was  not  in  the  moment  of  triumph,  nor  with  feelings  of 
triumph,  that  ^neas  uttered  that  exclamation.^  It  was  when,  with 
his  faithful  Achates  by  his  side,  he  was  surveying  the  works  of  art 
with  which  the  palace  of  Carthage  was  adorned,  and  his  attention 
had  been  caught  by  a representation  of  the  battles  of  Troy.  There 
he  saw  the  sons  of  Atreus  and  Priam,  and  the  fierce  Achilles.  The 
whole  extent  of  his  misfortunes — the  loss  and  desolation  of  his 
friends,  the  fall  of  his  beloved  country — rush  upon  his  recollection. 

“ Constitit,  et  lachrymans;  Quis  jam  locus,  inquit,  Achate, 

Quae  regio  in  terris,  nostri  non  plena  laboris?  ” 

Sir,  the  passage  may,  hereafter,  have  a closer  application  to  the 
cause  than  my  eloquent  and  classical  friend  intended.  For,  if  the 
state  of  things  which  has  already  commenced,  is  to  go  on;  if  the 
spirit  of  hostility  which  already  exists  in  three  of  our  States,  is  to 
catch  by  contagion  and  spread  among  the  rest,  as,  from  the  pro- 
gress of  the  human  passions  and  the  unavoidable  conflict  of  inter- 
est, it  will  too  surely  do,  what  are  we  to  expect  ? Civil  wars  have 
often  arisen  from  far  inferior  causes,  and  have  desolated  some  of 
the  fairest  provinces  of  the  earth.  History  is  full  of  the  afflicting 
narratives  of  such  wars,  from  causes  far  inferior;  and  it  will  con- 
tinue to  be  her  mournful  office  to  record  them  till  time  shall  be  no 
more.  It  is  a momentous  decision  which  this  court  is  called  on  to 

’ To  those  who  are  familiar  with  the  speech  of  Mr.  Emmett,  as  reported  in 
Wheaton,  this  explanation  is  due.  It  was  corrected  after  the  argument,  and  the 
portion  of  it  to  which  Mr.  Wirt’s  reply  refers,  now  reads  : “ And  conscious  of 
the  value  of  her  own  good  works,  she  may  turn  the  mournful  exclamation  of 
^neas  into  an  expression  of  triu7nph^  and  exultingly  ask  ‘Quse  regio  in  terris,’  ” 
&c.  The  words  in  italics  were  interpolated  after  the  speech  was  made,  and  their 
introduction  takes  away  the  chief  point  of  the  reply. 


66  ARGUMENT  OF  MR.  WIRT  IN  GIBBONS  v.  OGDEN. 

make.  Here  are  three  States  almost  on  the  eve  of  war.  It  is  the 
high  province  of  this  court  to  interpose  its  benign  and  mediatorial 
influence.  The  framers  of  our  admirable  Constitution  would  have 
deserved  the  wreath  of  immortality  which  they  have  acquired,  had 
they  done  nothing  else  than  to  establish  this  guardian  tribunal  to 
harmonize  the  jarring  elements  in  our  system.  But,  sir,  if  you  do 
not  interpose  your  friendly  hand  and  extirpate  the  seeds  of  anarchy 
which  New  York  has  sown,  you  will  have  civil  war.  The  war  of 
legislation,  which  has  already  commenced,  will,  according  to  its 
usual  course,  become  a war  of  blows.  Your  country  will  be  shaken 
with  civil  strife.  Your  republican  institutions  will  perish  in  the 
conflict.  Your  Constitution  will  fall.  The  last  hope  of  nations 
will  be  gone.  And  what  will  be  the  effect  upon  the  rest  of  the 
world  ? Look  abroad  at  the  scenes  which  are  now  passing  on  our 
globe,  and  judge  of  that  effect.  The  friends  of  free  government 
throughout  the  earth,  who  have  been  heretofore  animated  by  our 
example,  and  have  held  it  up  before  them  as  their  polar  star,  to 
guide  them  through  the  stormy  seas  of  revolution,  will  witness  our 
fall  with  dismay  and  despair.  The  arm  that  is  everywhere  lifted  in 
the  cause  of  liberty,  will  drop,  unnerved,  by  the  warrior’s  side. 
Despotism  will  have  its  day  of  triumph,  and  will  accomplish  the 
purpose  at  which  it  too  certainly  aims.  It  will  cover  the  earth  with 
the  mantle  of  mourning.  Then,  sir,  when  New  York  shall  look 
upon  this  scene  of  ruin,  if  she  have  the  generous  feelings  which  I 
believe  her  to  have,  it  will  not  be  with  her  head  aloft,  in  the  pride 
of  conscious  triumph — “her  rapt  soul  sitting  in  her  eyes;”  no,  sir, 
no ; dejected,  with  shame  and  confusion — drooping  under  the 
weight  of  her  sorrow,  with  a voice  suffocated  with  despair,  well 
may  she  then  exclaim : 

“ Quis  jam  locus, 

Qu36  regio  in  terris,  nostri  non  plena  laboris  ! ” 


ARGUMENT  OF  DANIEL  WEBSTER 

In  the  Case  of  Ogden  v.  Saunders. 

[i2  Wheat.  213.] 

JN  THE  SUPREME  COURT  OF  THE  UNITED  STATES, 
JANUARY  TERM,  1827. 


Constitutional  Law. — A certificate  of  discharge  under  a State 
insolvent  law  is  no  bar  to  an  action  brought  by  a citizen  of  another  State, 
in  the  Courts  of  the  United  States,  or  of  any  other  State  than  that  where 
the  discharge  was  obtained. 


Analysis  of  Mr.  Webster’s  Argument. 


1.  Bankrupt  laws  can  be  established  only 

by  national  authority. 

2.  Obligation  of  contracts  considered. 

3.  The  duty  of  performing  a contract  rests 

upon  universal  law.  — Illustration  of 
the  principle. 

4.  A statute  which  diminishes  or  lessens  an 

obligation,  impairs  it. 


5.  The  law  acts  upon  a contract  only  when 

it  is  broken,  but  forms  no  part  of  the 
contract  itself. 

6.  Object  and  purpose  of  the  constitutional 

prohibition. 

7.  Grants  of  powers  to  Congress  and  prohi- 

bitions to  the  States  considered. 


The  argument  of  Mr.  Webster  in  the  case  of  Ogden  v.  Saunders — though 
not  so  famous  as  his  splendid  effort  in  behalf  of  his  ahna  mater  Wheat.  518), 
which  made  his  reputation  as  the  foremost  constitutional  lawyer  in  America;  nor 
so  well  known  as  bis  exhaustive  and  learned  exposition  of  the  law  of  charitable 
uses  in  the  Girard  Will  Case  (2  How.  127),  nor  so  elaborate  as  the  speech  deliv- 
ered on  the  trial  of  John  Francis  Knapp,  charged  with  aiding  and  abetting  in 
the  murder  of  Joseph  White,  which  was  pronounced  by  so  competent  an  author, 
ity  as  Rufus  Choate,  as  a more  difficult  and  higher  effort  of  mind  than  that 
more  famous  “Oration  for  the  Crown,” — is,  perhaps,  equal  to  any  of  his  great 
discussions  as  a specimen  of  perfect  reasoning  and  clear  statement.  The  ques- 
tions presented  are  of  the  utmost  importance  to  the  commercial  world,  and  the 
manner  in  which  they  are  discussed  indicate  the  power  and  force  of  his  under- 
standing— not  inferior  to  that  possessed  by  any  man  who  has  ever  worn  the  robes 
of  his  noble  and  honorable  profession — and  worthy  of  the  first  lawyer  and  the 
first  statesman  of  his  age.  The  propositions  advanced  are  demonstrated  with 
mathematical  accuracy,  by  a chain  of  argument  leading  inevitably  to  the  con- 
clusions reached.  The  facts  upon  which  the  case  arose  are  as  follows  : 

Ogden  had  been  discharged  from  his  debts,  under  an  insolvent  law  of  the 
State  of  New  York,  known  as  the  Three-Fourths  Act,  and  was  afterwards  sued 
by  Saunders,  a citizen  of  Kentucky,  in  the  United  States  Court  for  the  District 

w7] 


68 


ARGUMENT  OF  DANIEL  WEBSTER 


of  Louisiana,  on  a bill  of  exchange  drawn  by  Jordan,  at  Lexington,  Kentucky, 
which  had  been  accepted  by  Ogden  prior  to  his  insolvency,  and  protested  for 
non-payment.  The  debtor,  among  other  defenses,  pleaded  his  discharge  under 
the  New  York  Statute  as  a bar  to  the  action.  Judgment  was  rendered  in  favor 
of  the  plaintiff,  upon  a special  verdict.  An  appeal  was  taken  to  the  Supreme 
Court  of  the  United  States,  which  was  finally  argued  at  the  January  Term,  1827, 
by  Mr.  Webster  and  Mr.  Wheaton  for  the  creditor  (the  respondent  and  defend- 
ant in  error);  and  the  Attorney-General,  Mr.  Livingston,  Mr.  D.  B.  Ogden,  Mr. 
Jones,  and  Mr.  Sampson,  for  the  debtor  (the  appellant  and  plaintiff  in  error). 

On  behalf  of  the  creditor  it  was  claimed,  that  the  statute  of  a State,  dis- 
charging a debtor  without  full  payment,  was  a law  impairing  the  obligation  of  a 
contract,  and  in  violation  of  the  Constitution  of  the  United  States,  being  within 
the  prohibition  declaring  that  no  State  shall  pass  any  law  impairing  the  obliga- 
tion of  contracts;  and  the  act  being  void,  Ogden’s  discharge  under  it  was  no  bar 
to  plaintiff’s  action.  The  debtor,  on  the  other  hand,  contended  that  the  con- 
tract sued  upon  derived  its  obligation  from  the  law  under  which  it  was  made. 
That  since  the  obligation  was  created  by  the  law  in  force  at  its  date,  it  could  be 
modified  and  determined  by  it;  and  hence  that  such  law  could  not  impair  the 
obligation,  since  no  obligation  could  arise  under  the  law,  which  was  inconsistent 
with  the  law  itself.  That,  accordingly,  a contract  made  in  a State  of  which  the 
parties  were  citizens,  was  subject  to  a State  bankrupt  law  existing  at  the  date  of 
the  contract.  The  propositions  advanced  by  the  debtor  were  attacked  by  Mr. 
Webster  on  two  grounds:  (i)  He  denied  that  a contract,  ordinarily,  derives 
binding  force  from  the  particular  laws  of  a State  ; (2)  That  an  insolvent  law  im- 
paired the  obligation  of  a contract,  and  the  power  to  pass  such  a law  was  denied 
to  the  State  by  the  federal  Constitution,  by  which  the  power  to  pass  bankrupt 
laws  was  vested  exclusively  in  Congress,  and  such  power  could  be  exercised  only 
by  national  authority. 

Under  the  first  proposition  he  asserted  that  all  human  obligations  sprang 
from  the  universal  law  which  recognizes  everywhere  a moral  duty  on  the  part  of 
every  individual  to  perform  what  he  undertakes.  That  the  laws  of  a State  simply 
provide  a remedy  for  enforcing  an  obligation  already  existing,  and  can  operate 
upon  the  contract  only  when  it  is  broken.  He  illustrated  this  by  showing  that 
a contract  made  in  an  uncivilized  country  or  remote  territory,  where  no  civil 
government  or  formal  statutory  provisions  existed,  could  be  enforced  in  any 
tribunal  here  having  jurisdiction  of  the  parties;  which  could  not  be,  if  it  were 
true  that  the  contract  depended  for  its  existence  upon  some  positive  law  pre- 
vailing in  the  place  where  the  contract  was  made.  Under  his  second  proposition 
he  showed  that  a bankrupt  law  deprived  the  creditor  of  a remedy,  but  did  not  ex- 
tinguish the  debt;  that  so  long  as  the  remedy  was  not  denied  by  Congress,  the 
creditor  could  enforce  his  claim  in  the  federal  courts;  and  the  plea  that  the  rem- 
edy had  been  denied  in  the  State  court,  contrary  to  the  organic  law  of  the  land, 
was  no  bar,  and  no  answer,  in  the  federal  tribunal,  which  would  recognize  only 
a discharge  under  a national  bankrupt  law. 

This  selection,  it  is  true,  presents  no  room  for  rhetorical  display,  but  the  ar- 
gument itself  is  great.  When  all  the  counsel  had  addressed  the  court,  Mr. 
Webster  closed  the  case  for  the  creditor  (the  respondent  and  defendant  in  error) 
as  follows : 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


69 


May  it  please  the  Court: — The  question  arising  in  this  case 
is  not  more  important,  nor  so  important  even,  in  its  bearing  on  in- 
dividual cases  of  private  right,  as  in  its  character  of  a public  polit- 
ical question.  The  Constitution  was  intended  to  accomplish  a 
great  political  object.  Its  design  was  not  so  much  to  prevent  in- 
justice or  injury  in  one  case,  or  in  successive  single  cases,  as  it  w^as 
to  make  general  salutary  provisions,  which,  in  their  operation, 
should  give  security  to  all  contracts,  stability  to  credit,  uniformity 
among  all  the  States  in  those  things  which  materially  concern  the 
foreign  commerce  of  the  country,  and  their  own  credit,  trade,  and 
intercourse  with  each  other.  The  real  question  is,  therefore,  a 
much  broader  one  than  has  been  argued.  It  is  this:  Whether  the 
Constitution  has  not,  for  general  political  purposes,  ordained  that 
bankrupt  laws  should  be  established  only  by  national  authority  ? 
We  contend  that  such  was  the  intention  of  the  Constitution;  an  in- 
tention, as  we  think,  plainly  manifested  in  several  of  its  provisions. 

I.  Bankrupt  laws  can  be  established  only  by  national 

AUTHORITY. 

The  act  of  New  York,  under  which  this  question  arises,  provides 
that  a debtor  may  be  discharged  from  all  his  debts,  upon  assigning 
his  property  to  trustees  for  the  use  of  his  creditors.  When  applied 
to  the  discharge  of  debts  contracted  before  the  date  of  the  law,  this 
court  has  decided  that  the  act  is  invalid.'  The  act  itself  makes 
no  distinction  between  past  and  future  debts,  but  provides  for  the 
discharge  of  both  in  the  same  manner.  In  the  case,  then,  of  a debt 
already  existing,  it  is  admitted  that  the  act  does  impair  the  obliga- 
tion of  contracts.  We  wish  the  full  extent  of  this  decision  to  be 
well  considered.  It  is  not  merely  that  the  legislature  of  the  State 
cannot  interfere  by  law,  in  the  particular  case  of  A.  or  B.,  to  injure 
or  impair  rights  which  have  become  vested  under  contracts;  but  it 
is,  that  they  have  no  power  by  general  law  to  regulate  the  manner 
in  which  all  debtors  may  be  discharged  from  subsisting  contracts; 
in  other  words,  they  cannot  pass  general  bankrupt  laws  to  be  ap- 
plied in  pr(Bse7iti.  Now,  it  is  not  contended  that  such  laws  are  un- 
just, and  ought  not  to  be  passed  by  any  legislature.  It  is  not  said 
that  they  are  unwise  or  impolitic.  On  the  contrary,  we  know  the 
general  practice  to  be,  that,  when  bankrupt  laws  are  established, 
they  make  no  distinction  between  present  and  future  debts.  While 
all  agree  that  special  acts,  made  for  individual  cases,  are  unjust,  all 
admit  that  a general  law,  made  for  all  cases,  may  be  both  just  and 

’ Sturges  V.  Crowninshield,  4 Wheat.  Rep.  122. 


70 


ARGUMENT  OF  DANIEL  WEBSTER 


politic.  The  question,  then,  which  meets  us  on  the  threshold,  is 
this:  If  the  Constitution  meant  to  leave  the  States  the  power  of 
establishing  systems  of  bankruptcy  to  act  upon  future  debts,  what 
great  or  important  object  of  a political  nature  is  answered  by  deny- 
ing the  power  of  making  such  systems  applicable  to  existing  debts  ? 

The  argument  used  in  Sturges  tj.  Crowninshield  was,  at  least,  a 
plausible  and  consistent  argument.  It  maintained  that  the  pro- 
hibition of  the  Constitution  was  levelled  only  against  interferences 
in  individual  cases,  and  did  not  apply  to  general  laws,  whether  those 
laws  were  retrospective  or  prospective  in  their  operation.  But  the 
court  rejected  that  conclusion.  It  decided  that  the  Constitution 
was  intended  to  apply  to  general  laws  or  systems  of  bankruptcy; 
that  an  act  providing  that  all  debtors  might  be  discharged  from  all 
creditors,  upon  certain  conditions,  was  of  no  more  validity  than  an 
act  providing  that  a particular  debtor.  A.,  should  be  discharged  on 
the  same  conditions  from  his  particular  creditor,  B. 

It  being  thus  decided  that  general  laws  are  within  the  prohibition 
of  the  Constitution,  it  is  for  the  plaintiff  in  error  now  to  show  on  what 
ground,  consistent  with  the  general  objects  of  the  Constitution,  he 
can  establish  a distinction  which  can  give  effect  to  those  general 
laws  in  their  application  to  future  debts,  while  it  denies  them  effect 
in  their  application  to  subsisting  debts.  The  words  are,  that  “ no 
State  shall  pass  any  law  impairing  the  obligation  of  contracts.” 
The  general  operation  of  all  such  laws  is  to  impair  that  obligation; 
that  is,  to  discharge  the  obligation  without  fulfilling  it.  This  is  ad- 
mitted; and  the  only  ground  taken  for  the  distinction  to  stand  on 
is,  that,  when  the  law  was  in  existence  at  the  time  of  the  making  of 
the  contract,  the  parties  must  be  supposed  to  have  reference  to  it; 
or,  as  it  is  usually  expressed,  the  law  is  made  a part  of  the  contract. 
Before  considering  what  foundation  there  is  for  this  argument,  it 
may  be  well  to  inquire  what  is  that  obligation  of  contracts  of  which 
the  Constitution  speaks,  and  whence  it  is  derived. 

2.  Obligation  of  contracts  considered. 

The  definition  given  by  the  court  in  Sturges  v.  Crowninshield  is 
sufficient  for  our  present  purpose.  “A  construct,”  say  the  court, 
“ is  an  agreement  to  do  some  particular  thing  ; the  law  binds  the 
party  to  perform  this  agreement,  and  this  is  the  obligation  of  the 
contract.” 

It  is,  indeed,  probable  that  the  Constitution  used  the  words  in  a 
somewhat  more  popular  sense.  We  speak,  for  example,  familiarly 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


71 


of  a usurious  contract,  and  yet  we  say,  speaking  technically,  that  a 
usurious  agreement  is  no  contract. 

By  the  obligation  of  a contract,  we  should  understand  the 
.Constitution  to  mean,  the  duty  of  performing  a legal  agreement.  II 
the  contract  be  lawful,  the  party  is  bound  to  perform  it.  But  bound 
by  what  ? What  is  it  that  binds  him  ? And  this  leads  us  to  what 
we  regard  as  a principal  fallacy  in  the  argument  on  the  other  side 
That  argument  supposes,  and  insists,  that  the  whole  obligation  of  a 
contract  has  its  origin  in  the  municipal  law.  This  position  we  con- 
trovert. We  do  not  say  that  it  is  that  obligation  which  springs  from 
conscience  merely;  but  we  deny  that  it  is  only  such  as  springs 
from  the  particular  law  of  the  place  where  the  contract  is  made.  It 
must  be  a lawful  contract,  doubtless;  that  is,  permitted  and  allowed; 
because  society  has  a right  to  prohibit  all  such  contracts,  as  well  as 
all  such  actions,  as  it  deems  to  be  mischievous  or  injurious.  But, 
if  the  contract  be  such  as  the  law  of  society  tolerates — in  other 
words,  if  it  be  lawful — then,  we  say,  the  duty  of  performing  it  springs 
from  universal  law.  And  this  is  the  concurrent  sense  of  all  the 
writers  of  authority. 

3.  The  duty  of  performing  a contract  rests  upon  universal 
LAW. — Illustration  of  the  principle. 

The  duty  of  performing  promises  is  thus  shown  to  rest  on  uni- 
versal law;  and  if,  departing  from  this  well  established  principle,  we 
now  follow  the  teachers  who  instruct  us  that  the  obligation  of  a con- 
tract has  its  origin  in  the  law  of  a particular  State,  and  is  in  all 
cases  what  that  law  makes  it,  and  no  more,  and  no  less,  we  shall 
probably  find  ourselves  involved  in  inextricable  difficulties.  A man 
promises,  for  a valuable  consideration,  to  pay  money  in  New  York. 
Is  the  obligation  of  that  contract  created  by  the  laws  of  that  State, 
or  does  it  subsist  independent  of  those  laws  ? We  contend  that  the 
obligation  of  a contract,  that  is,  the  duty  of  performing  it,  is  not 
created  by  the  law  of  the  particular  place  where  it  is  made,  and  de- 
pendent on  that  law  for  its  existence;  but  that  it  may  subsist,  and 
does  subsist,  without  that  law,  and  independent  of  it.  The  obliga- 
tion is  in  the  contract  itself,  in  the  assent  of  the  parties,  and  in  the 
sanction  of  universal  law.  This  is  the  doctrine  of  Grotius,  Vattel, 
Burlamaqui,  Pothier,  and  Rutherforth.  The  contract,  doubtless,  is 
necessarily  to  be  enforced  by  the  municipal  law  of  the  place  where 
performance  is  demanded.  The  municipal  law  acts  on  the  contract 
after  it  is  made,  to  compel  its  execution,  or  give  damages  for  its 


72 


ARGUMENT  OF  DANIEL  WEBSTER 


violation.  But  this  is  a very  different  thing  from  the  same  law 
being  the  origin  or  fountain  of  the  contract. 

Let  us  illustrate  this  matter  by  an  example.  Two  persons  con- 
tract together  in  New  York  for  the  delivery,  by  one  to  the  other,  of 
a domestic  animal,  a utensil  of  husbandry,  or  a weapon  of  war. 
This  is  a lawful  contract,  and,  while  the  parties  remain  in  New 
York,  it  is  to  be  enforced  by  the  laws  of  that  State.  But,  if  they 
remove  with  the  article  to  Pennsylvania  or  Maryland,  there  a new 
law  comes  to  act  upon  the  contract,  and  to  apply  other  remedies  if 
it  be  broken.  Thus  far  the  remedies  are  furnished  by  the  laws  of  soci- 
ety. But  suppose  the  same  parties  to  go  together  to  a savage  wilder- 
ness, or  a desert  island,  beyond  the  reach  of  the  laws  of  any  society. 
The  obligation  of  the  contract  still  subsists,  and  is  as  perfect  as  ever, 
and  is  now  to  be  enforced  by  another  law,  that  is,  the  law  of  nature; 
and  the  party  to  whom  the  promise  was  made  has  a right  to  take  by 
force  the  animal,  the  utensil,  or  the  weapon  that  was  promised  him. 
The  right  is  as  perfect  here  as  it  was  in  Pennsylvania,  or  even  in  New 
York;  but  this  could  not  be  so  if  the  obligation  were  created  by  the 
laws  of  New  York,  or  were  dependent  on  that  law  for  its  existence, 
because  the  laws  of  that  State  can  have  no  operation  beyond  its  ter- 
ritory. Let  us  reverse  this  example.  Suppose  a contract  to  be 
made  between  two  persons  cast  ashore  on  an  uninhabited  territory, 
or  in  a place  over  which  no  law  of  society  extends.  There  are  such 
places,  and  contracts  have  been  made  by  individuals  casually  there, 
and  these  contracts  have  been  enforced  in  courts  of  law  in  civilized 
communities.  Whence  do  such  contracts  derive  their  obligation,  if 
not  from  universal  law  ? 

4.  A STATUTE  WHICH  DIMINISHES  OR  LESSENS  AN  OBLIGATION 

IMPAIRS  IT. 

If  these  considerations  show  us  that  the  obligation  of  a lawful 
contract  does  not  derive  its  force  from  the  particular  law  of  the 
place  where  made,  but  may  exist  where  that  law  does  not  exist,  and 
be  enforced  where  that  law  has  no  validity,  then  it  follows,  we  con- 
tend, that  any  statute  which  diminishes  or  lessens  its  obligation  does 
impair  it,  whether  it  precedes  or  succeeds  the  contract  in  date. 
The  contract  having  an  independent  origin,  whenever  the  law  comes 
to  exist  together  with  it,  and  interferes  with  it,  it  lessens,  we  say,  and 
impairs,  its  own  original  and  independent  obligation.  In  the  case 
before  the  court,  the  contract  did  not  owe  its  existence  to  the  par- 
ticular law  of  New  York;  it  did  not  depend  on  that  law,  but  could 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


73 


be  enforced  without  the  territory  of  that  State,  as  well  as  within  it. 
Nevertheless,  though  legal,  though  thus  independently  existing, 
though  thus  binding  the  party  everywhere,  and  capable  of  being  en- 
forced everywhere,  yet  the  statute  of  New  York  says  that  it  shall  be 
discharged  without  payment.  This,  we  say,  impairs  the  obligation 
of  that  contract.  It  is  admitted  to  have  been  legal  in  its  inception, 
legal  in  its  full  extent,  and  capable  of  being  enforced  by  other  tri- 
bunals according  to  its  terms.  An  act,  then,  purporting  to  dis- 
charge it  without  payment  is,  as  we  contend,  an  act  impairing  its 
obligation. 

Merc,  however,  we  meet  the  opposite  argument,  stated  on  differ- 
ent occasions  in  different  terms,  but  usually  summed  up  in  this, 
that  the  law  itself  is  a part  of  the  contract,  and,  therefore,  cannot 
impair  it.  What  does  this  mean  ? Let  us  seek  for  clear  ideas.  It 
does  not  mean  that  the  law  gives  any  particular  construction  to  the 
terms  of  the  contract,  or  that  it  makes  the  promise,  or  the  consider- 
ation, or  the  time  of  performance,  other  than  is  expressed  in  the 
instrument  itself.  It  can  only  mean  that  it  is  to  be  taken  as  a part 
of  the  contract,  or  understanding  of  the  parties,  that  the  contract 
itself  shall  be  enforced  by  such  laws  and  regulations,  respecting 
remedy  and  for  the  enforcement  of  contracts,  as  are  in  being  in  the 
State  where  it  is  made  at  the  time  of  entering  into  it.  This  is  meant, 
or  nothing  very  clearly  intelligible  is  meant,  by  saying  the  law  is 
part  of  the  contract. 

There  is  no  authority  in  adjudged  cases  for  the  plaintiff  in  error 
but  the  State  decisions  which  have  been  cited,  and,  as  has  already 
been  stated,  they  all  rest  on  this  reason,  that  the  law  is  part  of  the 
contract.  Against  this,  we  contend:  ist.  That,  if  the  proposition 
were  true,  the  conse(}uence  would  not  follow.  2d.  That  the  propo- 
sition itself  cannot  be  maintained. 

1^.  The  law  acts  upon  a contract  only  when  it  is  broken, 

BUT  FORMS  NO  PART  OF  THE  CONTRACT  ITSELF. 

I.  If  it  were  true  that  the  law  is  to  be  considered  as  part  of  the 
contract,  the  consequence  contended  for  would  not  follow;  because, 
if  this  statute  be  part  of  the  contract,  so  is  every  other  legal  or  con- 
stitutional provision  existing  at  the  time  which  affects  the  contract, 
or  which  is  capable  of  affecting  it;  and  especially  this  very  article 
of  the  Constitution  of  the  United  States  is  part  of  the  contract. 
The  plaintiff  in  error  argues  in  a complete  circle.  He  supposes  the 
parties  to  have  had  reference  to  it  because  it  was  a binding  law,  and 


74 


ARGUMENT  OF  DANIEL  WEBSTER 


yet  he  proves  it  to  be  a binding  law  only  upon  the  ground  that  such 
reference  was  made  to  it.  We  come  before  the  court  alleging  the 
law  to  be  void,  as  unconstitutional;  they  stop  the  inquiry  by  oppos- 
ing to  us  the  law  itself.  Is  this  logical  ? Is  it  not  precisely  objectio 
ejus,  cujus  dissolutio petitur  7 If  one  bring  a bill  to  set  aside  a judg- 
ment, is  that  judgment  itself  a good  plea  in  bar  to  the  bill  ? We 
propose  to  inquire  if  this  law  is  of  force  to  control  our  contract,  or 
whether,  by  the  Constitution  of  the  United  States,  such  force  be 
not  denied  to  it.  The  plaintiff  in  error  stops  us  by  saying  that  it 
does  control  the  contract,  and  so  arrives  shortly  at  the  end  of  the 
debate.  Is  it  not  obvious,  that,  supposing  the  act  of  New  York  to 
be  a part  of  the  contract,  the  question  still  remains  as  undecided  as 
ever.  What  is  that  act  ? Is  it  a law,  or  is  it  a nullity  ? A thing  of 
force,  or  a thing  of  no  force  ? Suppose  the  parties  to  have  con- 
templated this  act,  what  did  they  contemplate  ? Its  words  only,  or 
its  legal  effect  ? Its  words,  or  the  force  which  the  Constitution  of 
the  United  States  allows  to  it  ? If  the  parties  contemplated  any  law, 
they  contemplated  all  the  law  that  bore  on  their  contract,  the  aggre- 
gate of  all  the  statute  and  constitutional  provisions.  To  suppose 
that  they  had  in  view  one  statute  without  regarding  others,  or  that 
they  contemplated  a statute  without  considering  that  paramount 
constitutional  provisions  might  control  or  qualify  that  statute,  or 
abrogate  it  altogether,  is  unreasonable  and  inadmissible.  “ This 
contract,”  says  one  of  the  authorities  relied  on,  “ is  to  be  construed 
as  if  the  law  were  specially  recited  in  it.”  Let  it  be  so  for  the  sake 
of  argument.  But  it  is  also  to  be  construed  as  if  the  prohibitory 
clause  of  the  Constitution  were  recited  in  it,  and  this  brings  us  back 
again  to  the  precise  point  from  which  we  departed. 

The  Constitution  always  accompanies  the  law,  and  the  latter  can 
have  no  force  which  the  former  does  not  allow  to  it.  If  the  reasoning 
were  thrown  into  the  form  of  special  pleading,  it  would  stand  thus: 
the  plaintiff  declares  on  his  debt;  the  defendant  pleads  his  dis- 
charge under  the  law;  the  plaintiff  alleges  the  law  unconstitutional; 
but  the  defendant  says,  you  knew  of  its  existence;  to  which  the 
answer  is  obvious  and  irresistible,  I knew  its  existence  on  the 
statute-book  of  New  York,  but  I knew,  at  the  same  time,  it  was  null 
and  void  under  the  Constitution  of  the  United  States. 

The  language  of  another  leading  decision  is,  “A  law  in  force  at 
the  time  of  making  the  contract  does  not  violate  that  contract  ”;  but 
the  very  question  is  whether  there  be  any  such  law  “ in  force  ”;  for, 
if  the  States  have  no  authority  to  pass  such  laws,  then  no  such  law 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


75 


can  be  in  force.  The  Constitution  is  a part  of  the  contract  as  much 
as  the  law,  and  was  as  much  in  the  contemplation  of  the  parties. 
So  that  the  proposition,  if  it  be  admitted  that  the  law  is  part  of  the 
contract,  leaves  us  just  where  it  found  us;  that  is  to  say,  under  the 
necessity  of  comparing  the  law  with  the  Constitution,  and  of  decid- 
ing by  such  comparison  whether  it  be  valid  or  invalid.  If  the  law 
be  unconstitutional,  it  is  void,  and  no  party  can  be  supposed  to 
have  had  reference  to  a void  law.  If  it  be  constitutional,  no  refer- 
ence to  it  need  be  supposed. 

2.  But  the  proposition  itself  cannot  be  maintained.  The  law 
is  no  part  of  the  contract.  What  part  is  it  ? the  promise  ? the  con- 
sideration ? the  condition  ? Clearly,  it  is  neither  of  these.  It  is  no 
term  of  the  contract.  It  acts  upon  the  contract  only  when  it  is 
broken,  or  to  discharge  the  paity  from  its  obligation  after  it  is 
broken.  The  municipal  law  is  the  force  of  society  employed  to 
compel  the  performance  of  contracts.  In  every  judgment  in  a suit 
on  contract,  the  damages  are  given,  and  the  imprisonment  of  the  per- 
son or  sale  of  goods  awarded,  not  in  performance  of  the  contract, 
or  as  part  of  the  contract,  but  as  an  indemnity  for  the  breach  of  the 
contract.  Even  interest,  which  is  a strong  case,  where  it  is  not 
expressed  in  the  contract  itself,  can  only  be  given  as  damages.  It  is 
all  but  absurd  to  say  that  a man’s  goods  are  sold  on  a fieri  facias^ 
or  that  he  himself  goes  to  jail,  in  pursuance  of  his  contract.  These 
are  the  penalties  which  the  law  inflicts  for  the  breach  of  his  contract. 
Doubtless,  parties,  when  they  enter  into  contracts,  may  well  consid- 
er both  what  their  rights  and  what  their  liabilities  will  be  by 
the  law,  if  such  contracts  be  broken;  but  this  contemplation  of  con- 
sequences which  can  ensue  only  when  the  contract  is  broken,  is  no 
part  of  the  contract  itself.  The  law  has  nothing  to  do  with  the 
contract  till  it  be  broken;  how,  then,  can  it  be  said  to  form  a part 
of  the  contract  itself. 

But  there  are  other  cogent  and  more  specific  reasons  against 
considering  the  law  as  part  of  the  contract,  (i.)  If  the  law  be  part 
of  the  contract,  it  cannot  be  repealed  or  altered;  because,  in  such 
case,  the  repealing  or  modifying  law  itself  would  impair  the  obliga- 
tion of  the  contract.  The  insolvent  law  of  New  York,  for  example, 
authorizes  the  discharge  of  a debtor  on  the  consent  of  two-thirds  of 
his  creditors.  A subsequent  act  requires  the  consent  of  three- 
fourths;  but,  if  the  existing  law  be  part  of  the  contract,  this  latter 
law  would  be  void.  In  short,  nothing  which  is  part  of  the  contract 
can  be  varied  but  by  consent  of  the  parties;  therefore,  the  argument 


T6 


ARGUMENT  OF  DANIEL  WEBSTER 


runs  in  ahsurdum;  for  it  proves  that  no  laws  for  enforcing  the  con- 
tract, or  giving  remedies  upon  it,  or  any  way  affecting  it,  can  be 
changed  or  modified  between  its  creation  and  its  end.  If  the  law 
in  question  binds  one  party  on  the  ground  of  assent  to  it,  it  binds 
both,  and  binds  them  until  they  agree  to  terminate  its  operatioa 
(2.)  If  the  party  be  bound  by  an  implied  assent  to  the  law,  as  there- 
by making  the  law  a part  of  the  contract,  how  would  it  be  if  the 
parties  had  expressly  dissented,  and  agreed  that  the  law  should 
make  no  part  of  the  contract  ? Suppose  the  promise  to  have  been 
that  the  promisor  would  pay  at  all  events,  and  not  take  advantage 
of  the  statute;  still,  would  not  the  statute  operate  on  the  whole — 
on  this  particular  agreement  and  all  ? and  does  not  this  show  that 
the  law  is  no  part  of  the  contract,  but  something  above  it  ? (3.)  If 

the  law  of  the  place  be  part  of  the  contract,  one  of  its  terms  and 
conditions,  how  could  it  be  enforced,  as  we  all  know  it  might  be,  in 
another  jurisdiction,  which  should  have  no  regard  to  the  law  of  the 
place  ? Suppose  the  parties,  after  the  contract,  to  remove  to 
another  State,  do  they  carry  the  law  with  them  as  part  of  their  con- 
tract? We  all  know  they  do  not.  Or,  take  a common  case.  Some  States 
have  laws  abolishing  imprisonment  for  debt;  these  laws,  according 
to  the  argument,  are  all  parts  of  the  contract;  how,  then,  can  the 
party,  when  sued  in  another  State,  be  imprisoned  contrary  to  the 
terms  of  the  contract  ? (4.)  The  argument  proves  too  much,  inas- 

much as  it  applies  as  strongly  to  prior  as  to  subsequent  contracts. 
It  is  founded  on  a supposed  assent  to  the  exercise  of  legislative 
authority,  without  considering  whether  that  exercise  be  legal  or 
illegal.  But  it  is  equally  fair  to  found  the  argument  on  an  implied 
assent  to  the  potential  exercise  of  that  authority.  The  implied 
reference  to  the  control  of  legislative  power  is  as  reasonable  and  as 
strong  when  that  power  is  dormant,  as  while  it  is  in  exercise.  In 
one  case  the  argument  is,  “The  law  existed;  you  knew  it,  and 
acquiesced.”  In  the  other  it  is,  “ The  power  to  pass  the  law  ex- 
isted; you  knew  it,  and  took  your  chance.”  There  is  as  clear  an 
assent  in  one  instance  as  in  the  other.  Indeed,  it  is  more  reason- 
able and  more  sensible  to  imply  a general  assent  to  all  the  laws  of 
society,  present  and  to  come,  from  the  fact  of  living  in  it,  than  it  is 
to  imply  a particular  assent  to  a particular  existing  enactment. 
The  true  view  of  the  matter  is,  that  every  man  is  presumed  to  sub- 
mit to  all  power  which  may  be  lawfully  exercised  over  him  or  hxs 
right,  and  no  one  should  be  presumed  to  submit  to  illegal  acts  of 
power,  whether  actual  or  contingent.  (5.)  But  a main  objection  to 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


77 


this  argument  is,  that  it  would  render  the  whole  constitutional  pro- 
vision  idle  and  inoperative;  and  no  explanatory  words,  if  such 
words  had  been  added  in  the  Constitution,  could  have  prevented 
this  consequence.  The  law,  it  is  said,  is  part  of  the  contract;  it 
cannot,  therefore,  impair  the  contract,  because  a contract  cannot 
impair  itself.  Now,  if  this  argument  be  sound,  the  case  would  have 
been  the  same,  whatever  words  the  Constitution  had  used.  If,  for 
example,  it  had  declared  that  no  State  should  pass  any  law  impair- 
ing contracts  prospectively  or  retrospectively ; or  any  law  impairing 
contracts,  whether  existing  or  future;  or,  whatever  terms  it  had  used 
to  prohibit  precisely  such  a law  as  is  now  before  the  court, — the 
prohibition  would  be  totally  nugatory  if  the  law  is  to  be  taken  as 
part  of  the  contract;  and  the  result  would  be,  that,  whatever  may 
be  the  laws  which  the  States,  by  this  clause  of  the  Constitution,  are 
prohibited  from  passing,  yet,  if  they  in  fact  do  pass  such  laws,  those 
laws  are  valid,  and  bind  parties  by  a supposed  assent. 

But  further,  this  idea,  if  well  founded,  would  enable  the  States 
to  defeat  the  whole  constitutional  provision  by  a general  enactment. 
Suppose  a State  should  declare,  by  law,  that  all  contracts  entered 
into  therein  should  be  subject  to  such  laws  as  the  legislature,  at  any 
time,  or  from  time  to  time,  might  see  fit  to  pass.  This  law,  accord- 
ing to  the  argument,  would  enter  into  the  contract,  become  a part 
of  it,  and  authorize  the  interference  of  the  legislative  power  with  it, 
for  any  and  all  purposes,  wholly  uncontrolled  by  the  Constitution 
of  the  United  States. 

So  much  for  the  argument  that  the  law  is  a part  of  the  contract. 
We  think  it  is  shown  to  be  not  so;  and  if  it  were,  the  expected  con- 
sequence would  not  follow. 

6.  Object  and  purpose  of  the  constitutional  prohibition. 

The  inquiry,  then,  recurs,  whether  the  law  in  question  be  such 
a law  as  the  legislature  of  New  York  had  authority  to  pass.  The 
question  is  general.  We  differ  from  our  learned  adversaries  on  gen- 
eral principles.  We  differ  as  to  the  main  scope  and  end  of  this 
constitutional  provision.  They  think  it  entirely  remedial;  we  re- 
gard it  as  preventive.  They  think  it  adopted  to  secure  redress 
for  violated  private  rights;  to  us  it  seems  intended  to  guard  against 
great  public  mischiefs.  They  argue  it  as  if  it  were  designed  as  an  in- 
demnity or  protection  for  injured  private  rights  in  individual  cases  of 
meum  and  tuum’  we  look  upon  it  as  a great  political  provision,  favor- 


78 


ARGUMENT  OF  DANIEL  WEBSTER 


able  to  the  commerce  and  credit  of  the  whole  country.  Certainly,  we 
do  not  deny  its  application  to  cases  of  violated  private  right.  Such 
cases  are  clearly  and  unquestionably  within  its  operation.  Still,  we 
think  its  main  scope  to  be  general  and  political.  And  this,  we 
think,  is  proved  by  reference  to  the  history  of  the  country,  and  to 
the  great  objects  which  were  sought  to  be  attained  by  the  establish- 
ment of  the  present  government.  Commerce,  credit,  and  confidence 
were  the  principal  things  which  did  not  exist  under  the  old  Con- 
federation, and  which  it  was  a main  object  of  the  present  Constitu- 
tion to  create  and  establish.  A vicious  system  of  legislation,  a sys- 
tem of  paper  money  and  tender  laws,  had  completely  paralyzed 
industry,  threatened  to  beggar  every  man  of  property,  and,  ulti- 
mately, to  ruin  the  country.  The  relation  between  debtor  and 
creditor,  always  delicate,  and  always  dangerous  whenever  it  divides 
society,  and  draws  out  the  respective  parties  into  different  ranks  and 
classes,  was  in  such  a condition  in  the  years  1787,  1788,  and  1789, 
as  to  threaten  the  overthrow  of  all  government;  and  a revolution 
was  menaced,  much  more  critical  and  alarming  than  that  through 
which  the  country  had  recently  passed.  The  object  of  the  new 
Constitution  was  to  arrest  these  evils;  to  awaken  industry  by  giving 
security  to  property;  to  establish  confidence,  credit,  and  commerce, 
by  salutary  laws,  to  be  enforced  by  the  power  of  the  whole  com- 
munity. The  Revolutionary  War  was  over;  the  country  had  peace, 
but  little  domestic  tranquillity;  it  had  liberty,  but  few  of  its  enjoy- 
ments, and  none  of  its  security.  The  States  had  struggled  together, 
but  their  union  was  imperfect.  They  had  freedom,  but  not  an  es- 
tablished course  of  justice.  The  Constitution  was,  therefore,  framed, 
as  it  professes,  “ to  form  a more  perfect  union,  to  establish  justice, 
to  secure  the  blessings  of  liberty,  and  to  insure  domestic  tran- 
quillity.” 

It  is  not  pertinent  to  this  occasion  to  advert  to  all  the  means  by 
which  these  desirable  ends  were  to  be  obtained.  Some  of  them, 
closely  connected  with  the  subject  now  under  consideration,  are 
obvious  and  prominent.  The  objects  were  commerce,  credit,  and 
mutual  confidence  in  matters  of  property;  and  these  required, 
among  other  things,  a uniform  standard  of  value  or  medium  of  pay- 
ments. One  of  the  first  powers  given  to  Congress,  therefore,  is  that 
of  coining  money  and  fixing  the  value  of  foreign  coins;  and  one  of 
the  first  restraints  imposed  on  the  States  is  the  total  prohibition  to 
coin  money.  These  two  provisions  are  industriously  followed  up 
and  completed  by  denying  to  the  States  all  power  to  emit  bills  of 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS. 


Y9 


credit,  or  to  make  anything  but  gold  and  silver  a tender  in  the  pay- 
ment of  debts.  The  whole  control,  therefore,  over  the  standard  of 
value  and  medium  of  payments  is  vested  in  the  general  government. 
And  here  the  question  instantly  suggests  itself,  why  should  such 
pains  be  taken  to  confide  to  Congress  alone  this  exclusive  power  of 
fixing  on  a standard  of  value,  and  of  prescribing  the  medium  in 
which  debts  shall  be  paid,  if  it  is,  after  all,  to  be  left  to  every  State 
to  declare  that  debts  may  be  discharged,  and  to  prescribe  how  they 
may  be  discharged,  without  any  payment  at  all  ? Why  say  that  no 
man  shall  be  obliged  to  take,  in  discharge  of  a debt,  paper  money 
issued  by  the  authority  of  a State,  and  yet  say  that  by  the  same 
authority  the  debt  may  be  discharged  without  any  payment  whatever. 

We  contend  that  the  Constitution  has  not  left  its  work  thus  un- 
finished. We  contend  that,  taking  its  provisions  together,  it  is  ap- 
parent it  was  intended  to  provide  for  two  things,  intimately  con- 
nected with  each  other.  These  are, — i.  A medium  for  the  payment 
of  debts  ; and,  2.  A uniform  manner  of  discharging  debts,  when 
they  are  to  be  discharged  without  payment. 

7.  Grants  of  power  to  Congress  and  prohibitions  to  the 
States  considered. 

The  arrangement  of  the  grants  and  prohibitions  contained  in 
the  Constitution  is  fit  to  be  regarded  on  this  occasion.  The  grant 
to  Congress  and  the  prohibition  on  the  States,  though  they  are  cer- 
tainly to  be  construed  together,  are  not  contained  in  the  same 
clauses.  The  powers  granted  to  Congress  are  enumerated  one  after 
another  in  the  eighth  section;  the  principal  limitations  on  those 
powers,  in  the  ninth  section;  and  the  prohibitions  to  the  States,  in 
the  tenth  section.  Now,  in  order  to  understand  whether  any  par- 
ticular power  be  exclusively  vested  in  Congress,  it  is  necessary  to 
read  the  terms  of  the  grant,  together  with  the  terms  of  the  pro- 
hibition. Take  an  example  from  that  power  of  which  we  have  been 
speaking,  the  coinage  power.  Here  the  grant  to  Congress  is,  “To 
coin  money,  regulate  the  value  thereof,  and  of  foreign  coins.”  Now, 
the  correlative  prohibition  on  the  States,  though  found  in  another 
section,  is  undoubtedly  to  be  taken  in  immediate  connection  with 
the  foregoing,  as  much  as  if  it  had  been  found  in  the  same  clause. 
The  only  just  reading  of  these  provisions,  therefore,  is  this  : “ Con- 
gress shall  have  power  to  coin  money,  regulate  the  value  thereof, 
and  of  foreign  coin;  but  no  State  shall  coin  money,  emit  bills  of 
credit,  or  make  anything  but  gold  and  silver  coin  a tender  in  pay- 
ment of  debts.” 


80 


ARGUMENT  OF  DANIEL  WEBSTER 


These  provisions  respect  the  medium  of  payment,  or  standard  of 
value,  and,  thus  collated,  their  joint  result  is  clear  and  decisive. 
We  think  the  result  clear,  also,  of  those  provisions  which  respect 
the  discharge  of  debts  without  payment.  Collated  in  like  manner, 
they  stand  thus:  “ Congress  shall  have  power  to  establish  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States; 
but  no  State  shall  pass  any  law  impairing  the  obligation  of  con- 
tracts.” This  collocation  cannot  be  objected  to,  if  they  refer  to 
the  same  subject-matter;  and  that  they  do  refer  to  the  same  subject- 
matter  we  have  the  authority  of  this  court  for  saying,  because  this 
court  solemnly  determined,  in  Sturges  v.  Crowninshield,  that  this  pro- 
hibition on  the  States  did  apply  to  systems  of  bankruptcy.  It  must 
be  now  taken,  therefore,  that  State  bankrupt  laws  were  in  the  mind 
of  the  Convention  when  the  prohibition  was  adopted,  and,  therefore, 
the  grant  to  Congress  on  the  subject  of  bankrupt  laws,  and  the  pro- 
hibition to  the  States  on  the  same  subject,  are,  properly,  to  be  taken 
and  read  together;  and  being  thus  read  together,  is  not  the  intention 
clear  to  take  away  from  the  States  the  power  of  passing  bankrupt 
laws,  since,  while  enacted  by  them,  such  laws  would  not  be  uniform, 
and  to  confer  the  power  exclusively  on  Congress,  by  whom  uniform 
laws  could  be  established  ? 

Suppose  the  order  of  arrangement  in  the  Constitution  had  been 
otherwise  than  it  is,  and  that  the  prohibitions  to  the  States  had  pre-' 
ceded  the  grants  of  power  to  Congress,  the  two  powers,  when  col- 
lated, would  then  have  read  thus:  No  State  shall  pass  any  law  im- 

pairing the  obligation  of  contracts;  but  Congress  may  establish 
uniform  laws  on  the  subject  of  bankruptcies.”  Could  any  man 
have  doubted,  in  that  case,  that  the  meaning  was,  that  the  States 
should  not  pass  laws  discharging  debts  without  payment,  but  that 
Congress  might  establish  uniform  bankrupt  acts  ? And  yet  this  in- 
version of  the  order  of  the  clauses  does  not  alter  their  sense.  We 
contend  that  Congress  alone  possesses  the  power  of  establishing 
bankrupt  laws;  and,  although  we  are  aware  of  that,  in  Sturges  v. 
Crowninshield,  the  court  decided  that  such  an  exclusive  power 
could  not  be  inferred  from  the  words  of  the  grant  in  the  seventh 
section,  we  yet  would  respectfully  request  the  bench  to  reconsider 
this  point.  We  think  it  could  not  have  been  intended  that  both  the 
States  and  general  government  should  exercise  this  power;  and, 
therefore,  that  a grant  to  one  implies  a prohibition  on  the  other. 
But  not  to  press  a topic  which  the  court  has  already  had  under 
its  consideration,  we  contend  that,  even  without  reading  the  clauses 


IN  THE  CASE  OF  OGDEN  v.  SAUNDERS 


81 


of  the  Constitution  in  the  connection  which  we  have  suggested,  and 
which  is  believed  to  be  the  true  one,  the  prohibition  in  the  tenth 
section,  taken  by  itself,  does  forbid  the  enactment  of  State  bankrupt 
laws,  as  applied  to  future  as  well  as  present  debts.  We  argue  this 
from  the  words  of  the  prohibition,  from  the  association  they  are 
found  in,  and  from  the  objects  intended. 

1.  The  words  are  general.  The  States  can  pass  no  law  impair- 
ing contracts;  that  is,  any  contract.  In  the  nature  of  things  a law 
may  impair  a future  contract,  and,  therefore,  such  contract  is  within 
the  protection  of  the  Constitution.  The  words  being  general,  it  is 
for  the  other  side  to  show  a limitation;  and  this,  it  is  submitted, 
they  have  wholly  failed  to  do,  unless  they  shall  have  established  the 
doctrine  that  the  law  itself  is  part  of  the  contract.  It  may  be  added 
that  the  particular  expression  of  the  Constitution  is  worth  regard- 
ing. The  thing  prohibited  is  called  a law^  not  an  act.  A law,  in. 
its  general  acceptation,  is  a. rule  prescribed  for  future  conduct,, 
not  a legislative  interference  with  existing  rights.  The  framers  of 
the  Constitution  would  hardly  have  given  the  appellation  of  law  to 
violent  invasions  of  individual  right,  or  individual  property,  by  acts 
of  legislative  power.  Although,  doubtless,  such  acts  fall  within  this 
prohibition,  yet  they  are  prohibited  also  by  general  principles,  and 
by  the  constitutions  of  the  States,  and,  therefore,  further  provision 
against  such  acts  was  not  so  necessary  as  against  other  mischiefs. 

2.  The  most  conclusive  argument,  perhaps,  arises  from  the  con- 
nection in  which  the  clause  stands.  The  words  of  the  prohibition, 
so  far  as  it  applies  to  civil  rights,  or  rights  of  property,  are,  that  “ no 
State  shall  coin  money,  emit  bills  of  credit,  make  anything  but  gold 
and  silver  coin  a tender  in  the  payment  of  debts,  or  pass  any  law 
impairing  the  obligation  of  contracts.”  The  prohibition  of  attain- 
ders, and  ex  post  facto  laws,  refers  entirely  to  criminal  proceedings, 
and,  therefore,  should  be  considered  as  standing  by  itself;  but  the 
other  parts  of  the  prohibition  are  connected  by  the  subject-matter, 
and  ought,  therefore,  to  be  construed  together.  Taking  the  words 
thus  together,  according  to  their  natural  connection,  how  is  it  pos- 
sible to  give  a more  limited  construction  to  the  term  “ contracts,” 
in  the  last  branch  of  the  sentence,  than  to  the  word  “ debts,”  in  that 
immediately  preceding  ? Can  a State  make  anything  but  gold  and 
silver  a tender  in  payment  of  future  debts  ? This  nobody  pretends. 
But  what  ground  is  there  for  a distinction?  No  State  shall  make 
anything  but  gold  and  silver  a tender  in  the  payment  of  debts,  nor 
pass  any  law  impairing  the  obligation  of  contracts.  Now,  by  wha^’ 


82 


ARGUMENT  OF  DANIEL  WEBSTER 


reasoning  is  it  made  out  that  the  debts  here  spoken  of  are  any  debts, 
either  existing  or  future,  but  that  the  contracts  spoken  of  are  subsist- 
ing contracts  only  ? Such  a distinction  seems  to  us  wholly  arbitrary. 
We  see  no  ground  for  it.  Suppose  the  article,  where  it  uses  the 
word  debts^  had  used  the  word  contracts.  The  sense  would  have 
been  the  same  then  that  it  now  is;  but  the  identity  of  terms  would 
have  made  the  nature  of  the  distinction  now  contended  for  some- 
what more  obvious.  Thus  altered,  the  clause  would  read  that  no 
State  should  make  anything  but  gold  and  silver  a tender  in  discharge 
of  contracts^  nor  pass  any  law  impairing  the  obligation  of  contracts; 
yet  the  first  of  these  expressions  would  have  been  held  to  apply 
to  all  contracts,  and  the  last  to  subsisting  contracts  only.  This 
shows  the  consequence  of  what  is  now  contended  for  in  a strong 
light.  It  is  certain  that  the  substitution  of  the  word  contracts  for 
debts  would  not  alter  the  sense  ; and  an  argument  that  could  not 
be  sustained,  if  such  substitution  were  made,  cannot  be  sustained 
now.  We  maintain,  therefore,  that,  if  tender  laws  may  not  be  made 
for  future  debts,  neither  can  bankrupt  laws  be  made  for  future  con- 
tracts. All  the  arguments  used  here  may  be  applied  with  equal 
force  to  tender  laws  for  future  debts.  It  may  be  said,  for  instance, 
that,  when  it  speaks  of  debts^  the  Constitution  means  existing  debts, 
and  not  mere  possibilities  of  future  debt;  that  the  object  was  to 
preserve  vested  rights;  and  that,  if  a man,  after  a tender  law  had 
passed,  had  contracted  a debt,  the  manner  in  which  that  tender 
law  authorized  that  debt  to  be  discharged  became  part  of  the  con- 
tract, and  that  the  whole  debt,  or  whole  obligation,  was  thus  quali- 
fied by  the  pre-existing  law,  and  was  no  more  than  a contract  to  de- 
liver so  much  paper  money,  or  whatever  other  article  might  be  made 
a tender,  as  the  original  bargain  expressed.  Arguments  of  this  sort 
will  not  be  found  wanting  in  favor  of  tender  laws,  if  the  court  yield 
to  similar  arguments  in  favor  of  bankrupt  laws. 

These  several  prohibitions  of  the  Constitution  stand  in  the  same 
paragraph;  they  have  the  same  purpose,  and  were  introduced  for 
the  same  object;  they  are  expressed  in  words  of  similar  import,  in 
grammar,  and  in  sense;  they  are  subject  to  the  same  construction, 
and,  we  think,  no  reason  has  yet  been  given  for  imposing  an  impor- 
tant restriction  on  one  part  of  them,  which  does  not  equally  show 
that  the  same  restriction  might  be  imposed  also  on  the  other  part. 

We  have  already  endeavored  to  maintain  that  one  great  political 
object  intended  by  the  Constitution  would  be  defeated,  if  this  con- 
struction were  allowed  to  prevail.  As  an  object  of  political  regula- 


IN  THE  CASE  OF  OGDEN  v,  SAUNDERS 


83 


tion,  it  was  not  important  to  prevent  the  States  from  passing  bank- 
rupt laws  applicable  to  present  debts,  while  the  power  was  left  to 
them  in  regard  to  future  debts;  nor  was  it  at  all  important,  in  a 
political  point  of  view,  to  prohibit  tender  laws  as  to  future  debts, 
while  it  was  yet  left  to  the  States  to  pass  laws  for  the  discharge  of 
such  debts,  which,  after  all,  are  little  different  in  principle  from 
tender  laws.  Look  at  the  law  before  the  court  in  this  view.  It 
provides  that,  if  the  debtor  will  surrender,  offer,  or  tender  to 
trustees,  for  the  benefit  of  his  creditors,  all  his  estate  and  effects,  he 
shall  be  discharged  from  ail  his  debts.  If  it  had  authorized  a ten- 
der of  anything  but  money  to  any  one  creditor,  though  it  were  of  a 
value  equal  to  the  debt,  and  thereupon  provided  for  a discharge,  it 
would  have  been  clearly  invalid.  Yet  it  is  maintained  to  be  good, 
merely  because  it  is  made  for  all  creditors,  and  seeks  a discharge 
from  all  debts;  although  the  thing  tendered  may  not  be  equivalent 
to  a shilling  in  the  pound  of  those  debts.  This  shows,  again,  very 
clearly,  how  the  Constitution  has  failed  of  its  purpose,  if,  having  in 
terms  prohibited  all  tender  laws,  and  taken  so  much  pains  to  estab- 
lish a uniform  medium  of  payment,  it  has  yet  left  the  States  the 
power  of  discharging  debts,  as  they  may  see  fit,  without  any  pay- 
ment at  all. 

To  recapitulate  what  has  been  said,  we  maintain,  first,  that  the 
Constitution,  by  its  grants  to  Congress  and  its  prohibitions  on  the 
States,  has  sought  to  establish  one  uniform  standard  of  value,  or 
medium  of  payment.  Second,  that,  by  like  means,  it  has  endeav- 
ored to  provide  for  one  uniform  mode  of  discharging  debts,  when 
they  are  to  be  discharged  without  payment.  Third,  that  these  ob- 
jects are  connected,  and  that  the  first  loses  much  of  its  impor- 
tance, if  the  last,  also,  be  not  accomplished.  Fourth,  that,  reading 
the  grant  to  Congress  and  the  prohibition  on  the  States  together, 
the  inference  is  strong  that  the  Constitution  intended  to  confer  an 
exclusive  power  to  pass  bankrupt  laws  on  Congress.  Fifth,  that 
the  prohibition  in  the  tenth  section  reaches  to  all  contracts,  exist- 
ing or  future,  in  the  same  way  that  the  other  prohibition,  in  the 
same  section,  extends  to  all  debts,  existing  or  future.  Sixthly,  that, 
upon  any  other  construction,  one  great  political  object  of  the  Con- 
stitution will  fail  of  its  accomplishment. 


UNCERTAINTY  OF  LAW. 


WILLIAM  PALEY. 

To  a mind  revolving  the  subject  of  human  jurisprudence,  there  fre- 
quently occurs  this  question  : Why,  since  the  maxims  of  natural  justice  are 
few  and  evident,  do  there  arise  so  many  doubts  and  controversies  in  their 
application  ? Or,  in  other  words,  how  comes  it  to  pass,  that  although  the 
principles  of  the  law  of  nature  be  simple,  and  for  the  most  part  sufficiently 
obvious,  there  should  exist,  nevertheless,  in  every  system  of  municipal 
laws,  and  in  the  actual  administration  of  relative  justice,  numerous  uncer- 
tainties, and  acknowledged  difficulty  ? Whence,  it  may  be  asked,  so  much 
room  for  litigation,  and  so  many  subsisting  disputes,  if  the  rules  of  human 
duty  be  neither  obscure  nor  dubious  ? If  a system  of  morality,  containing 
both  the  precepts  of  revelation  and  the  deductions  of  reason,  may  be  com- 
prised within  the  compass  of  one  moderate  volume ; and  the  moralist  be 
able,  as  he  pretends,  to  describe  the  rights  and  obligations  of  mankind,  in 
all  the  different  relations  they  may  hold  to  one  another ; what  need  of 
those  codes  of  positive  and  particular  institutions,  of  those  tomes  of  stat- 
utes and  reports,  which  require  the  employment  of  a long  life  even  to 
peruse  ? 

Now,  to  account  for  the  existence  of  so  many  sources  of  litigation,  not- 
withstanding the  clearness  and  perfection  of  natural  justice,  it  should  be 
observed,  in  the  first  place,  that  treatises  of  morality  always  suppose  facts 
to  be  ascertained ; and  not  only  so,  but  the  intention  likewise  of  the  par- 
ties to  be  known,  and  laid  bare.  For  example,  when  we  pronounce  that 
promises  ought  to  be  fulfilled  in  that  sense  in  which  the  promiser  appre- 
hended, at  the  time  of  making  the  promise,  the  other  party  received  and  un- 
derstood it ; the  apprehension  of  one  side,  and  the  expectation  of  the  other, 
must  be  discovered,  before  this  rule  can  be  reduced  to  practice,  or  applied 
to  the  determination  of  any  actual  dispute.  Wherefore,  the  discussion  of 
facts  which  the  moralist  supposes  to  be  settled,  the  discovery  of  intentions 
which  he  presumes  to  be  known,  still  remain  to  exercise  the  inquiry  of 
courts  of  justice.  And  as  these  facts  and  intentions  are  often  to  be  in- 
ferred, or  rather  conjectured,  from  obscure  indications,  from  suspicious  tes- 
timony or  from  a comparison  of  opposite  and  contending  probabilities,  they 
afford  a never  failing  supply  of  doubt  and  litigation.  For  which  reason 
the  science  of  morality  is  to  be  considered  rather  as  a direction  to  the  par 
ties  who  are  conscious  of  their  own  thoughts  and  motives  and  designs,  to 
which  consciousness  the  teacher  of  morality  constantly  appeals,  than  as  a 
guide  to  the  judge,  or  to  any  third  person,  whose  arbitration  must  proceed 
upon  rules  of  evidence,  and  maxims  of  credibility,  with  which  the  moralist 
has  no  COncern,_[Moral  and  Political  Philosophy.  Book  VI,  ch.  8.) 


[34] 


SPEECH  OF  SEARGENT  S.  PRENTISS, 


In  Defense  of  Hon.  Edward  C.  Wilkinson,  of  Mississippi, 
AND  Others,  Indicted  for  Murder. 

AT  THE  MERCER  COUNTY  OYER  AND  TERMINER,  HELD 
AT  HARRODSBURG,  KY.,  MARCH  TERM,  1839. 


Analysis  of  Mr.  Pren^itss’  Speech. 


t.  Reasons  for  changing  the  place  of  trial 
from  the  county  where  the  crime  was 
committed. 

а.  Private  means  employed  to  push  the  pros- 

ecution. — Mississippians  and  Ken-  j 
tuckians.— Duty  of  the  jury.  j 

3.  Statement  of  the  defense,  and  the  law  ap- 

plicable to  the  case.  | 

4.  The  facts  showing  a motive  for  a conspi-  1 

racy  to  visit  violence  on  the  accused.  [ 

5.  Evidence,  direct  and  circumstantial,  dis-  j 

closing  a conspiracy  to  destroy  the  | 
defendants.— The  direct  proof.  1 

б.  The  circumstantial  evidence  showing  a I 

conspiracy.  1 

7.  Arraignment  of  Henry  Oldham,  a witness  | 

for  the  commonwealth.  j 

8.  The  defendants,  from  their  situation,  not  1 


likely  to  provoke  a quarrel.— Char- 
acter of  the  participants  compared. 

9.  The  defendants  believed  a conspiracy 
existed,  whether  in  fact  it  did  or  did 
not. 

10.  The  part  taken  in  the  affray  by  the  re- 

spective defendants. 

11.  The  law  of  self-defense. — Circumstances 

which  justify  the  taking  of  life. 

12.  The  propositions  advanced  by  the  pros- 

ecution answered. — Illustrations  of 
the  law  of  self-defense. 

13.  Defendants’  conduct  eulogized. — They 

took  life  from  necessity,  not  from 
malice. 

14.  Scathing  review  of  the  character  and 

conduct  of  the  principal  witnesses  for 
the  prosecution. 


In  December,  1838,  Hon.  Edward  C.  Wilkinson,  his  brother  Benjamin  R. 
Wilkinson,  M.D.,  and  Mr.  John  Murdaugh,  all  residents  of  Mississippi,  visited 
Louisville,  Kentucky,  for  the  purpose  of  making  preparations  for  the  mar- 
riage of  the  first-named  gentleman,  which  was  about  to  be  celebrated  with 
appropriate  ceremonies.  The  party  stopped  at  the  Galt  House.  In  the  mean- 
time Doctor  Wilkinson  ordered  a suit  of  clothes  in  which  to  appear  at  his 
brother’s  wedding,  from  a Mr.  Redding,  a fashionable  Louisville  tailor.  Two 
days  prior  to  the  time  fixed  for  the  nuptials,  the  three  Mississippi  gentlemen 
visited  Mr.  Redding’s  establishment  for  the  purpose  of  obtaining  the  garments. 
The  coat  was  a misfit,  and  not  being  satisfactory,  the  tailor  promised  to  alter  it. 
The  Doctor  was  about  to  pay  for  the  trousers,  which  had  been  sent  to  the  hotel, 
when  his  brother  remarked,  that  he  had  better  try  them  on  first,  as  they  might 
be  found  to  fit  no  better  than  the  coat.  Redding  remarked  that  too  much  had 

rS5J 


86 


SPEECH  OF  SEARGENT  S.  PRENTISS 


been  said  about  that  already.  The  Judge  retorted  that  he  did  not  come  there  to 
be  insulted,  and  seizing  a poker  struck  Redding  a violent  blow.  An  alterca- 
tion ensued.  No  blood  was  spilt,  however,  and  the  parties  separated.  Redding, 
nettled  at  what  had  occurred,  concluded  to  take  out  warrants  against  the  offend- 
ers, but  was  obliged  to  go  to  the  Galt  House  to  get  their  names.  On  his  way 
thither,  he  related  the  circumstances  to  his  friends,  who  became  excited  over  the 
affair,  and  that  evening  armed  themselves  and  proceeded  in  a body  to  the  Galt 
House,  in  company  with  Redding,  WhateVer  may  have  been  their  original  in- 
tention, the  result  was  a terrible  and  bloody  tragedy.  The  Mississippians  were 
attacked,  knives  and  pistols  were  freely  used,  and  two  of  Redding’s  companions 
were  killed  in  the  affray.  The  most  intense  excitement  prevailed,  and  the  Judge 
and  his  friends  found  the  jail  their  only  place  of  safety.  Indictments  for  murder 
were  promptly  returned  ; but  such  was  the  state  of  public  feeling,  that  an  appli- 
cation was  made  to  the  Legislature  to  change  the  place  of  trial  to  Mercer  County, 
and  it  accordingly  took  place  at  Harrodsburg  the  following  March. 

The  defense  was  conducted  by  Seargent  S.  Prentiss,  an  old  friend  of  Judge 
Wilkinson,  with  whom  were  associated  some  of  the  ablest  talent  at  the  Kentucky 
bar.  Mr.  Prentiss  was  at  this  time  but  thirty  years  of  age,  but  his  learning  and 
ability  had  already  made  for  him  a national  reputation.  He  had  just  delivered 
an  argument  in  Congress,  to  establish  his  right  to  a seat  in  that  body,  which 
Millard  Filmore  pronounced  the  most  brilliant  speech  to  which  he  had  ever 
listened.  “ It  elevated  him  at  once,”  he  said,  “ to  the  first  rank  of  Congressional 
orators.”  Daniel  Webster  heard  it  with  profound  attention  during  the  three  days 
occupied  in  its  delivery,  and  remarked  with  characteristic  brevity,  on  leaving  the 
Capitol:  “ No  one  can  equal  it.”  The  peroration  of  this  great  speech  has  become 
familiar.  It  was  short,  but  its  effect  upon  the  audience  was  said  to  have  been 
wonderful.  “ When  you  decide,”  he  said,  “ that  she  [the  State  of  Mississippi]  can- 
not choose  her  own  representation,  at  the  self-same  moment  blot  from  the  spangled 
banner  of  this  Union  the  bright  star  that  glitters  to  the  name  of  Mississippi,  but 
leave  the  stripe  behind,  a fit  emblem  of  her  degradation.”  Judge  Bullard  re- 
marked of  this  gifted  child  of  genius,  that  he  could  speak  the  thoughts  of  poetry 
with  the  inspiration  of  oratory,  and  in  the  tones  of  music,  *'  The  fluency  of  his 
speech,”  says  Mr.  Baldwin,  “ was  unbroken — no  syllable  unpronounced — not  a 
ripple  on  the  smooth  and  brilliant  tide.  Probably  he  never  hesitated  for  a word 
in  his  life.  His  diction  adapted  itself  without  effort  to  the  thought ; now  easy 
and  familiar,  now  stately  and  dignified,  now  beautiful  and  various  as  the  hues  of 
the  rainbow,  again  compact,  even  rugged  in  sinewy  strength,  or  lofty  and  grand 
in  eloquent  declamation.”  ^ In  seeking  for  comparisons  and  illustrations,  to 
adorn  and  beautify  his  rhetoric,  Mr.  Prentiss  did  not  confine  himself  to  places 
and  incidents  made  famous  by  the  poets  of  antiquity.  From  the  jungles  of  India 
and  the  valley  of  the  Nile  ; from  the  plains  of  Tartary  and  tropical  isles  in 
summer  seas,  he  drew  pictures  and  images  which  fascinated  and  delighted  hu 
hearers.  Yet  his  speeches  are  not  burdened  with  a wearisome  display  of  trop& 
and  metaphor.  He  was  not,  however,  content  to  adopt  a style  uniformly  severe, 
or  to  dress  his  images  in  solemn  black.  He  arrayed  them  in  gorgeous  trappings, 
in  gold  and  spangles,  or  in  sombre  garb,  as  fitness  required,  since  incongruity 
was  not  one  of  his  faults.  He  never  sacrificed  an  argument  for  tlie  sake  of 

' Baldwin’s  Flush  Times  in  Alabama  and  Mississippi. 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


87 


adornment.  His  facts  were  always  plainly  and  tersely  stated,  and  were  woven 
into  the  text  of  his  address  with  that  consummate  skill  which  indicates  powers  of 
analysis  of  the  highest  order.  Like  a meteor  blazing  across  the  sky,  his  genius 
shone  with  splendid  lustre,  dazzling  the  eyes  of  men  ; and  like  a meteor  he  sud- 
denly disappeared  forever,  the  victim  of  disease  and  melancholy. 

Judge  Rowan,  who  was  associated  with  Mr.  Prentiss  in  the  defense  of  Wil- 
kinson, took  occasion  in  his  speech  to  the  jury  to  pay  his  colleague  the  following 
compliment.  In  reply  to  the  charge  which  had  been  made  against  Mississippians, 
that  they  were  “ a lordly  people,  who  look  down  with  contempt  upon  mechanics 
and  the  laboring  classes  of  mankind,”  he  remarked  : “ They  looked  down  upon 
Mr.  Prentiss,  who  traveled  from  the  far  east,  and  was  engaged  in  teaching  school 
among  them — an  obscure  pedagogue.  No;  I cannot  say  he  was  obscure.  He 
could  not  be  obscure  anywhere ; the  eruptive  flashes  of  his  great  mind,  like  those 
of  ^tna,  threw  a blaze  of  light  around  him,  which  attracted,  or  rather  exacted, 
their  gaze  and  admiration.  They  sent  him  as  their  representative  to  the  Congress 
of  the  United  States.  Mr.  Prentiss  must  pardon  me  for  thus  going  into  his  private 
history.  I was  myself  an  humble  pedagogue.  The  difference  in  our  condition  is, 
that  in  my  case  the  people  of  Kentucky  honored  me  ; in  his  the  people  of  Mis- 
sissippi honored  themselves.” 

The  trial  excited  the  keenest  interest.  The  Court  House  was  crowded,  and 
it  is  said  that  nearly  two  hundred  ladies  graced  the  occasion  with  their  presence, 
attracted  by  the  name  and  fame  of  Mr.  Prentiss.  The  famous  Ben.  Hardin 
assisted  Mr.  Bullock,  the  prosecuting  attorney.  The  defense  was  a conspiracy  on 
the  part  of  the  tailor  and  his  friends  to  kill  or  degrade  the  Mississippians,  and  that 
the  latter  were  justified  in  defending  themselves  t©  the  last  extremity.  Mr. 
Prentiss  spoke  as  follows  : 

May  it  please  your  Honor,  and  you,  Gentlemen  of  the 
Jury  : — I rise  to  address  you  with  mingled  feelings  of  regret  and 
pleasure.  I regret  the  occasion  which  has  caused  me  thus  acci- 
dentally and  unexpectedly  to  appear  before  you,  and  has  compelled 
you  to  abandon,  for  a time,  the  peaceful  and  quiet  avocations  of 
private  life,  for  the  purpose  of  performing  the  most  important  and 
solemn  duty  which,  in  the  relations  of  civilized  society,  devolves 
upon  the  citizen.  I regret  to  behold  a valued  and  cherished  friend 
passing  through  one  of  the  most  terrible  ordeals  ever  invented  to 
try  the  human  feelings,  or  test  the  human  character  ; an  ordeal 
through  which,  I do  not  doubt,  he  will  pass  triumphantly  and 
honorably,  without  leaving  one  blot  or  stain  upon  the  fair  fame  that 
has  been  so  long  his  rightful  portion;  but  through  which  he  cannot 
pass  unscathed  in  his  sensibilities  and  feelings.  The  lightning  scar 
will  remain  upon  his  heart;  and  public  justice  herself  cannot,  even 
though  by  acclamation  through  your  mouths  she  proclaims  his  in- 
nocence, ever  heal  the  wounds  inflicted  by  this  fierce  and  unrelent- 
ing prosecution,  urged  on,  as  it  has  been,  by  the  demons  of  revenge 


88 


SPEECH  OF  SEARGENT  S.  PRENTISS 


and  avarice.  Most  of  all  do  I regret  the  public  excitement  which 
has  prevailed  in  relation  to  these  defendants;  the  uncharitable  pre- 
judgment which  has  forestalled  the  action  of  law;  the  inhospitable 
prejudice  aroused  against  them  because  they  are  strangers,  and 
the  attempt  which  has  been,  and  is  still  making,  to  mingle  with  the 
pure  stream  of  justice  the  foul,  bitter  and  turbid  torrent  of  private 
vengeance. 

But  I am  also  gratified;  gratified  that  the  prosecution  under 
which  my  friends  have  labored,  is  about  to  cease;  that  their  char- 
acters, as  well  as  the  cause  of  public  justice,  will  soon  be  vindi- 
cated; that  the  murky  cloud  which  has  enveloped  them  will  be  dis- 
sipated, and  the  voice  of  slander  and  prejudice  sink  into  silence 
before  the  clear,  stern,  truthful  response  of  this  solemn  tribunal. 
The  defendants  are  particularly  fortunate  in  being  tried  before 
such  a tribunal.  The  bearing  and  character  of  his  Honor  who 
presides  with  so  much  dignity,  give  ample  assurance  that  the  law 
will  be  correctly  and  impartially  laid  down;  and  I trust  I may  be 
permitted  to  remark,  that  I have  never  seen  a jury  in  whose  hands 
I would  sooner  intrust  the  cause  of  my  clients,  while,  at  the  same 
time,  I am  satisfied  you  will  do  full  justice  to  the  commonwealth. 

I came  before  you  an  utter  stranger,  and  yet  I feel  not  as  a 
stranger  towards  you;  I have  watched  during  the  course  of  the 
examination  the  various  emotions  which  the  evidence  was  so  well 
calculated  to  arouse  in  your  bosoms,  both  as  men  and  as  Ken- 
tuckians; and  when  I beheld  the  flush  of  honorable  shame  upon 
your  cheeks,  the  sparkle  of  indignation  in  your  eyes,  or  the  curl  of 
scorn  upon  your  lips,  as  the  foul  conspiracy  was  developed,  I felt 
that  years  could  not  make  us  better  acquainted.  I saw  upon  your 
faces  the  mystic  sign  which  constitutes  the  bond  of  union  among 
honest  and  honorable  men;  and  I knew  that  I was  about  to  address 
those  whose  feelings  would  respond  to  my  own.  I rejoiced  that  my 
clients  were,  in  the  fullest  sense  of  the  term,  to  be  tried  by  a jury 
of  their  peers. 

I.  Reasons  for  changing  the  place  of  trial  from  the 

COUNTY  WHERE  THE  CRIME  WAS  COMMITTED. 

Gentlemen  of  the  jury,  this  is  a case  of  no  ordinary  character, 
and  possesses  no  ordinary  interest.  Three  of  the  most  respectable 
citizens  of  the  State  of  Mississippi  stand  before  you,  indicted  for 
the  crime  of  murder,  the  highest  offense  known  to  the  laws  of  the 
land.  The  crime  is  charged  to  have  been  committed  not  in  your 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


89 


own  county,  but  in  the  city  of  Louisville,  and  there  the  indictment 
was  found.  The  defendants,  during  the  past  winter,  applied  to  the 
Legislature  for  a change  of  venue,  and  elected  your  county  as  the 
place  at  which  they  would  prefer  to  have  the  question  of  their  in- 
nocence or  guilt  investigated. 

This  course,  at  first  blush,  may  be  calculated  to  raise  in  your 
minds  some  unfavorable  impressions.  You  may  naturally  inquire 
why  it  was  taken;  why  they  did  not  await  their  trial  in  the  county 
in  which  the  offense  was  charged  to  have  been  committed;  in  fine, 
why  they  came  here  ? I feel  it  my  duty,  before  entering  into  the 
merits  of  this  case,  to  answer  these  questions,  and  to  obviate  such 
impressions  as  I have  alluded  to,  which,  without  explanation,  might 
very  naturally  exist.  In  doing  so,  it  will  be  necessary  to  advert 
briefly  to  the  history  of  the  case.  My  clients  have  come  before 
you  for  justice.  They  have  fled  to  you,  even  as  to  the  horns  of  the 
altar,  for  protection.  It  is  not  unknown  to  you,  that  upon  the  oc- 
currence of  the  events,  the  character  of  which  you  are  about  to  try, 
great  tumult  and  excitement  prevailed  in  the  city  of  Louisville. 
Passion  and  prejudice  poured  poison  into  the  public  ear.  Popular 
feeling  was  roused  into  madness.  It  was  with  the  utmost  difficulty 
that  the  strong  arm  of  the  constituted  authorities  wrenched  the 
victims  from  the  hands  of  an  infuriated  mob.  Even  the  thick  walls 
of  the  prison  hardly  afforded  protection  to  the  accused.  Crouched 
and  shivering  upon  the  cold  floor  of  their  gloomy  dungeon,  they 
listened  to  the  footsteps  of  the  gathering  crowds;  and  ever  and 
anon,  the  winter  wind  that  played  melancholy  music  through  the 
rusty  gates,  was  drowned  by  the  fierce  howling  of  the  human 
wolves,  who  prowled  and  bayed  around  their  place  of  refuge, 
thirsting  for  blood. 

Every  breeze  that  swept  over  the  city  bore  away  slander  and 
falsehood  upon  its  wings.  Even  the  public  press,  though  I doubt 
not  unwittingly,  joined  in  the  work  of  injustice.  The  misrepre- 
sentations of  the  prosecutor  and  his  friends  became  the  public 
history  of  the  transaction;  and  from  one  end  of  the  Union  to  the 
other,  these  defendants  were  held  up  to  public  gaze  and  public 
execration  as  foul,  unmanly  murderers,  and  that,  too,  before  any 
judicial  investigation  whatever  had  occurred,  or  any  opportunity 
been  afforded  them  for  saying  a single  word  in  their  own  defense. 

I recollect  well  when  I received  the  first  information  of  the 
affair.  It  was  in  some  respectable  newspaper,  which  professed  to 
give  a full  account  of  the  transaction,  and  set  forth  with  horrible 


90 


SPEECH  OF  SEARGENT  S.  PRENTISS 


minuteness  a column  of  disgusting  particulars.  Instantly,  openly, 
and  unhesitatingly,  I pronounced  the  paragraph  false,  and  trampled 
it  under  my  heels;  when  rumor  seemed  to  indorse  and  sustain  the 
assertions  of  the  public  prints,  I laughed  her  to  scorn.  I had 
known  Judge  Wilkinson  long  and  well.  I knew  him  to  be  incapa- 
ble of  the  acts  attributed  to  him,  or  of  the  crime  with  which  he  was 
charged.  Not  an  instant  did  I falter  or  waver  in  my  belief.  I 
hurled  back  the  charge  as  readily  as  if  it  had  been  made  against 
myself.  What!  a man  whom  I had  known  for  years  as -the  very 
soul  of  honor  and  integrity,  to  be  guilty,  suddenly  and  without  prov- 
ocation, of  a base  and  cowardly  assassination  1 One  whose  whole 
course  of  life  had  been  governed  and  shaped  by  the  highest  moral 
principle;  whose  feelings  were  familiar  to  me;  whose  breast  ever 
had  a window  in  it  for  my  inspection,  and  yet  had  never  exhibited 
a cowardly  thought  or  dishonorable  sentiment;  that  such  a one, 
and  at  such  an  era  in  his  life  too,  should  leap  at  a single  bound  the 
wide  gulf  which  separates  vice  from  virtue,  and  plunge  at  once  into 
the  depths  of  crime  and  infamy  I Why  it  was  too  monstrous  for 
credence.  It  was  too  gross  for  credulity  itself.  Had  I believed  it, 
I should  have  lost  all  confidence  in  my  kind.  I would  no  longer 
have  trusted  myself  in  society  where  so  slender  a barrier  divided 
good  from  evil.  I should  have  become  a man-hater,  and,  Timon- 
like,  gone  forth  into  the  desert,  that  I might  rail  with  freedom 
against  my  race.  You  may  judge  of  my  gratification  in  finding  the 
real  state  of  facts  in  the  case  so  responsive  to  my  own  opinion. 

I am  told,  gentlemen,  that  during  this  popular  excitement,  there 
were  some  whose  standing  and  character  might  have  authorized  the 
expectation  of  a different  course  of  conduct,  who  seemed  to  think 
it  not  amiss  to  exert  their  talents  and  influence  in  aggravating  in- 
stead of  assuaging  the  violent  passions  of  the  multitude.  I am  told 
that  when  the  examination  took  place  before  the  magistrates,  every 
bad  passion,  every  ungenerous  prejudice  was  appealed  to.  The  ar- 
gument was  addressed,  not  to  the  court,  but  to  the  populace. 

It  was  said  that  the  unfortunate  individuals  who  fell  in  the 
affray  were  mechanics;  while  the  defendants  were  Mississippians, 
aristocratic  slaveholders^  who  looked  upon  a poor  man  as  no  better 
than  a negro.  They  were  called  gefitlemen^  in  derision  and  con- 
tempt. Every  instance  of  violence  which  has  occurred  in  Missis- 
sippi for  years  past  was  brought  up  and  arrayed  with  malignant 
pleasure,  and  these  defendants  made  answerable  for  all  the  crimes 
which,  however  much  to  be  regretted,  are  so  common  in  a new  and 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


91 


fapidly  populating  country.  It  was  this  course  of  conduct  and  this 
state  of  feeling  which  induced  the  change  of  venue. 

2.  Private  means  employed  to  push  the  prosecution. — 
Mississippians  and  Kentuckians. — Duty  of 

THE  JURY. 

I have  made  these  remarks,  because  I fear  that  a similar  spirit 
still  actuates  that  portion  of  this  prosecution,  which  is  conducted, 
not  by  the  State,  but  by  private  individuals. 

I am  not  aware  that  the  commonwealth  of  Kentucky  is  incapa- 
ble of  vindicating  her  violated  laws,  or  unwilling  to  prosecute  and 
punish  the  perpetrators  of  crime.  The  district  attorney  has  given 
ample  proof  that  she  is  provided  with  officers  fully  capable  for  as- 
serting her  rights  and  protecting  her  citizens;  and  with  the  excep- 
tion of  one  or  two  remarks,  which  fell  from  him  inadvertently,  I 
accord  to  his  observations  my  most  unqualified  approbation  : he 
has  done  equal  justice  to  the  State  and  the  defendants;  he  has  ac- 
quitted himself  ably,  honorably,  and  impartially.  But,  gentlemen, 
though  the  State  is  satisfied,  the  prosecutor  is  not.  Your  laws  have 
spoken  through  their  constituted  agent;  now  private  vengeance  and 
vindictive  malice  will  claim  to  be  heard.  One  of  the  ablest  lawyers 
of  your  country,  or  of  any  country,  has  been  employed  to  conduct 

private  part  of  this  prosecution;  employed,  not  by  the  common- 
wealth, but  by  the  real  murderer;  him  whose  forehead  I intend, 
before  I am  done,  to  brand  with  the  mark  of  Cain — that  in  after 
life  all  may  know  and  all  may  shun  him.  The  money  of  the  pros- 
ecutor has  purchased  the  talent  of  the  advocate;  and  the  contract 
is,  that  blood  shall  be  exchanged  for  gold.  The  learned  and  dis- 
tinguished gentleman  to  whom  I allude,  and  who  sits  before  me, 
may  well  excite  the  apprehension  of  the  most  innocent.  If  rumor 
speak  truth,  he  has  character  sufficient,  even  though  without  ability, 
and  ability  sufficient,  even  without  character,  to  crush  the  victims 
of  his  purchased  wrath. 

I said  that,  with  the  exception  of  one  or  two  remarks,  I was 
pleased  with  the  manly  and  honorable  course  of  the  common- 
wealth’s attorney.  Those  remarks  seemed  to  be  more  in  the  spirit 
of  his  colleague  than  in  accordance  with  his  own  feelings.  I was 
sorry  to  hear  him  mention  so  pointedly,  and  dwell  so  long  upon 
the  fact  that  the  defendants  were  Mississippians^  as  if  that  con- 
stituted an  ingredient  in  their  crime  or  furnished  a proof  of 


02 


SPEECH  OF  SEARGENT  S.  PRENTISS 


their  guilt.  If  to  be  a Mississippian  is  an  offense  in  my  clients,  I 
cannot  defend  them;  I am  myself  particeps  criminis.  We  are  all 
guilty;  with  a malice  aforethought,  we  have  left  our  own  beautiful 
homes,  and  sought  that  land,  the  name  of  which  seems  to  arouse  in 
the  minds  of  the  opposing  counsel  only  images  of  horror.  Truly 
the  learned  gentlemen  are  mistaken  in  us;  we  are  no  cannibals,  nor 
savages.  I would  that  they  would  visit  us,  and  disabuse  their 
minds  of  these  unkind  prejudices.  They  would  find  in  that  far 
country  thousands  of  their  own  Kentuckians,  who  have  cast  their 
lot  by  the  monarch  stream,  in  the  enjoyment  of  whose  rich  gifts, 
though  they  forget  not,  they  hardly  regret  the  bright  river  upon 
whose  banks  they  strayed  in  childhood.  No  State  has  contributed 
more  of  her  sons  to  Mississippi  than  Kentucky;  nor  do  they  suffer 
by  being  transplanted  to  that  genial  soil.  Their  native  State  may 
well  be  proud  of  them,  as  they  ever  are  of  her. 

But  I do  injustice  to  you  and  to  myself  by  dwelling  upon  this 
matter.  Here,  in  the  heart  of  Kentucky,  my  clients  have  sought 
and  obtained  an  unprejudiced,  impartial  jury.  You  hold  in  your 
hands  the  balance  of  justice;  and  I ask  and  expect  that  you  will 
not  permit  the  prosecution  to  cast  extraneous  and  improper  weights 
into  the  scale  against  the  lives  of  the  defendants.  You  constitute 
the  mirror  whose  office  it  is  to  reflect,  in  your  verdict,  the  law  and 
the  evidence  which  have  been  submitted  to  you.  Let  no  foul 
breath  dim  its  pure  surface,  and  cause  it  to  render  back  a broken 
and  distorted  image.  Through  you  now  flows  the  stream  of  public 
justice;  let  it  not  become  turbid  by  the  trampling  of  unholy  feet. 
Let  not  the  learned  counsel,  who  conducts  the  private  part  of  this 
prosecution,  act  the  necromancer  with  you,  as  he  did  with  the 
populace  in  the  city  of  Louisville,  when  he  raised  a tempest  which 
even  his  own  wizard  hand  could  not  have  controlled. 

Well  may  he  exclaim,  in  reference  to  that  act,  like  the  foul 
spirit  in  Manfred: 

I am  the  rider  of  the  wind, 

The  stirrer  of  the  storm; 

The  hurricane  I left  behind 
Is  yet  with  lightning  warm. 

Aye,  so  it  is  still  “with  lightning  warm.”  But  you,  gentlemen, 
will  perform  the  humane  office  of  a conductor,  and  convey  this 
electric  fluid  safely  to  the  earth. 

You  will  excuse  these  prefatory  observations:  they  are  instigated, 
by  no  doubt  of  you,  but  by  a sense  of  duty  to  the  defendants.  I 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


93 


wish  to  obviate,  in  advance,  the  attempts  which  I know  will  be 
made  to  excite  against  them  improper  and  ungenerous  prejudices. 
You  have  seen,  in  the  examination  of  one  of  the  witnesses,  Mr. 
Graham,  this  very  day,  a specimen  of  the  kind  of  feeling  which  has 
existed  elsewhere,  and  which  I so  earnestly  deprecate.  So  enraged 
was  he,  because  the  defendants  had  obtained  an  impartial  jury,  that 
he  wished  the  whole  Legislature  in  that  place  not  to  be  mentioned 
to  ears  polite,  and  that  he  might  be  the  fireman;  and  all  on  account 
of  the  passage  of  the  law  changing  the  venue.  Now,  though  I 
doubt  much  whether  this  worthy  gentleman  will  be  gratified  in  his 
benevolent  wishes,  in  relation  to  the  final  destiny  of  the  Senate  and 
House  of  Representatives  of  this  good  commonwealth,  yet  I cannot 
but  believe  that  his  desires  in  regard  to  himself  will  be  accom- 
plished, and  his  ambitious  aspirations  fully  realized  in  the  ultimate 
enjoyment  of  that  singular  office  which  he  so  warmly  covets. 

5.  Statement  of  the  defense,  and  the  law  applicable  to 

THE  CASE. 

Gentlemen  of  the  jury — I ask  for  these  defendants  no  sympathy, 
/lor  do  they  wish  it.  I ask  for  them  only  justice — such  justice  alone 
as  you  would  demand  if  you  occupied  their  situation  and  they 
yours.  They  scorn  to  solicit  that  from  your  pity  which  they  chal- 
lenge fi’om  your  sense  of  right.  I should  ill  perform  towards  them 
the  double  duty  which  I have  assumed,  both  of  friend  and  advo- 
cate, did  I treat  their  participation  in  this  unfortunate  transaction 
otherwise  than  candidly  and  frankly;  did  I attempt  to  avoid  re- 
sponsibility by  exciting  commiseration.  I know  that  sooner  than 
permit  deception  and  concealment  in  relation  to  their  conduct, 
they  would  bare  their  necks  to  the  loathsome  fingers  of  the  hang- 
man; for  to  them  the  infamous  cord  has  less  of  terror  than  false- 
hood and  self-degradation. 

That  these  defendants  took  away  the  lives  of  the  two  individu- 
als whose  deaths  are  charged  in  the  indictment,  they  do  not  deny. 
But  they  assert  that  they  did  not  so  voluntarily  or  maliciously;  that 
they  committed  the  act  from  stern  and  imperative  necessity;  from 
the  promptings  of  the  common  instincts  of  nature  ; by  virtue  of 
the  broad  and  universal  law  of  self-defense;  and  they  deny  that 
they  have  violated  thereby  the  ordinances  either  of  God  or  man. 
They  admit  the  act,  and  justify  it. 

The  ground  of  their  defense  is  <simple,  and  I will  state  it,  so 
that  it  cannot  be  misapprehended.  They  assert,  and  I shall  at- 


94 


SPEECH  OF  SEARGENT  S.  PRENTISS 


tempt,  from  the  evidence  submitted,  to  convince  you  that  a con- 
spiracy was  formed  by  the  prosecutor  and  various  other  persons, 
among  whom  were  the  deceased,  to  inflict  personal  violence  upon 
them;  that  the  conspirators,  by  preconcerted  agreement,  assembled 
at  the  Galt  House,  in  the  city  of  Louisville,  and  attempted  to  ac- 
complish their  object;  and  that,  in  the  necessary,  proper  and  legal 
defense  of  their  lives  and  persons  from  such  attempt,  the  defend- 
ants caused  the  deaths  of  two  of  the  conspirators.  After  discussing 
this  proposition,  I shall  submit  another,  which  is,  that  even  though 
a conspiracy  on  the  part  of  the  deceased  and  their  companions,  to 
inflict  personal  violence  and  bodily  injury  upon  the  defendants,  did 
not  exist,  yet  the  defendants  had  reasonable  ground  to  suppose  the 
existence  of  such  a conspiracy,  and  to  apprehend  great  bodily  harm 
therefrom;  and  that  upon  such  reasonable  apprehension  they  were 
justified  in  their  action,  upon  the  principle  of  self-defense,  equally 
as  if  such  conspiracy  had,  in  point  of  fact,  existed. 

The  law  applicable  to  these  two  propositions  is  simple,  being  in 
fact  nothing  more  than  a transcript  from  the  law  of  nature.  The 
principles  governing  and  regulating  the  right  of  self-defense  are 
substantially  the  same  in  the  jurisprudence  of  all  countries — at 
least  all  civilised  ones.  These  principles  have  been  read  to  you 
from  the  books  by  my  learned  and  excellent  friend.  Col.  Robertson, 
and  require  no  repetition. 

That  a man  has  a right  to  defend  himself  from  great  bodily  harm, 
and  to  resist  a conspiracy  to  inflict  upon  him  personal  violence,  if 
there  is  reasonable  danger,  even  to  the  death  of  the  assailant,  will 
not,  I presume,  be  disputed.  That  reasonable^  well-grounded  appre- 
hension, arising  from  the  actions  of  others,  of  immediate  violence 
and  injury,  is  a good  and  legal  excuse  for  defensive  action,  propor- 
tionate to  the  apparent  impending  violence,  and  sufficient  to  pre- 
vent it,  I take  to  be  equally  indisputable. 

4.  The  facts  showing  a motive  for  a conspiracy  to  visit 

VIOLENCE  ON  THE  ACCUSED. 

By  these  plain  rules,  and  upon  these  simple  principles,  let  us 
proceed  to  test  the  guilt  or  innocence  of  the  defendants.  First, 
then,  as  to  the  existence  of  the  conspiracy.  Before  examining  the 
direct  evidence  to  this  point,  you  will  naturally  inquire,  was  there  I 
any  cause  for  this  alleged  conspiracy  ? Motive  always  precedes 
action.  Was  there  any  motive  for  it?  If  we  establish  the  existence 
of  the  seed,  we  shall  feel  less  hesitation  in  being  convinced  of  the  ^ 


IN’  DEFENSE  OF  EDWARD  C.  WILKINSON. 


95 


production  of  the  plant.  Was  there,  then,  any  motive  on  the  part 
of  Mr.  Redding  and  his  friends  for  forming  a combination  to  inflict 
personal  violence  upon  the  defendants  ? In  answering  this  ques- 
tion, it  will  be  necessary  to  take  notice  of  the  evidence  which  has 
been  given  in  relation  to  events  that  transpired  at  the  shop  of  Mr. 
Redding  at  a period  anterior  to  the  transaction  at  the  Galt  House, 
and  which,  exjept  for  the  clue  they  afford  to  the  motive,  and  con- 
sequently to  the  subsequent  action  of  the  parties,  would  have  no 
bearing  upon  the  case  before  you.  You  will  take  heed  to  remem- 
ber, that  whatever  of  impropriety  you  may  consider  as  attaching  to 
the  conduct  of  Judge  Wilkinson  and  his  friends  during  this  part  of 
the  affair,  must  not  be  permitted  to  weigh  in  your  verdict,  inasmuch 
as  that  conduct  is  the  subject  of  another  indictment  which  is  still 
pending  in  this  court. 

Judge  Wilkinson  visited  Louisville  for  the  purpose  of  making 
the  preparations  necessary  for  the  celebration  of  his  nuptials.  The 
other  two  defendants  had  also  their  preparations  to  make,  inasmuch 
as  they  were  to*  act  as  the  friends  upon  this  interesting  occasion. 
Dr.  Wilkinson,  a brother  of  the  Judge,  had  ordered  a suit  of  clothes 
of  Mr.  Redding,  who  follows  the  very  respectable  occupation  of 
tailor,  occasionally  relieved  and  interspersed  by  the  more  agreeable 
pursuits  of  a coffee-house  keeper.  On  the  day  but  one  preceding 
that  fixed  for  the  marriage  ceremonies,  the  Doctor,  in  company 
with  his  brother  and  friend,  Murdaugh,  proceeded  to  the  shop  of 
Mr.  Redding  for  the  purpose  of  obtaining  the  wedding  garments. 
Upon  trying  on  the  coat,  it  was  found  ill  made  and  of  a most  un- 
graceful fit.  It  hung  loosely  about  his  shoulders,  and  excited  by 
its  awkward  construction  the  criticism  and  animadversion  of  his 
friends.  Even  the  artificer  did  not  presume  to  defend  the  work  of 
his  own  hands,  but  simply  contended  that  he  could  reorganize  the 
garment,  and  compel  it,  by  his  amending  skill,  into  fair  and  just 
proportions.  From  the  evidence,  I presume,  no  one  will  doubt  that 
it  was  a shocking  bad  coat.  Now,  though  under  ordinary  circum- 
stances the  aptitude  of  a garment  is  not  a matter  of  very  vital  im- 
portance in  the  economy  of  life,  and  ought  not  to  become  the  sub- 
ject of  controversy,  yet  all  will  admit  that  there  are  occasions  upon 
which  a gentleman  may  pardonably  indulge  a somewhat  fastidious 
taste  in  relation  to  this  matter.  Doctor  Wilkinson  will  certainly  be 
excused,  considering  the  attitude  in  which  he  stood,  for  desiring  a 
well-made  and  fashionable  coat. 

I confess  I am  not  a very  good  judge  in  concerns  of  this  sort. 


96 


SPEECH  OF  SEARGENT  S.  PRENTISS 


I have  had  no  experience  on  the  subject,  and  my  investigations  in 
relation  to  it  have  been  exceedingly  limited.  Under  favor,  how- 
ever, and  with  due  deference  to  the  better  judgment  of  the  learned 
counsel  on  the  other  side,  I give  it  as  my  decided  opinion,  that  a 
gentleman  who  is  about  to  participate  in  a marriage  ceremony  is 
justified  in  refusing  to  wear  a coat  which,  by  its  loose  construction 
and  superabundant  material,  indicates,  as  in  the  case  before  us,  a 
manifest  want  of  good  husbandry. 

Suffice  it  to  say.  Doctor  Wilkinson  and  his  friends  did  object  to 
the  garment,  and  Mr.  Redding,  after  some  altercation,  consented  to 
retain  it.  The  pantaloons,  which  constituted  a part  of  the  suit, 
had  been  sent  to  the  hotel,  and  the  Doctor  was  in  the  act  of  paying 
for  them  out  of  a $ioo  bill,  which  he  had  previously  deposited  with 
Mr.  Redding,  when  the  Judge  remarked  that  he  had  better  not  pay 
for  the  pantaloons  until  he  had  first  tried  them  on,  as  they  might 
be  found  to  fit  no  better  than  the  coat.  Mr.  Redding,  according 
to  his  own  evidence,  responded,  that  “ they  had  said  too  much  al- 
ready about  the  matter;”  to  which  the  Judge,  he  says,  replied,  that 
he  did  not  come  there  to  be  insulted,  and  immediately  seized  the 
poker  and  struck  him;  upon  which  the  Doctor  and  Mr.  Murdaugh 
also  fell  on  him,  with  their  knives  drawn.  Redding  then  seized  his 
shears,  but  did  not  succeed  in  cabbaging  therewith  any  part  of  his 
assailants.  He  was  successful,  however,  in  dragging  the  Judge  into 
the  street,  where,  after  a slight  scuffle  which  resulted  in  no  personal 
injury  to  any  of  the  parties,  they  were  separated.  After  the  separa- 
tion, Redding  offered,  if  they  would  lay  down  their  knives,  to  fight 
them  all.  This  kind  proposition  the  defendants  declined;  but  the 
Doctor  returned  into  the  shop,  obtained  his  $ioo  note,  and  then 
the  defendants  retired  from  the  place. 

Such,  in  substance,  is  Mr.  Redding’s  own  account  of  the  trans- 
action at  his  shop.  The  witness  Weaver  also  proves  the  altercation 
which  occurred  in  relation  to  the  fit  of  the  coat  and  the  scuffle 
which  ensued  in  consequence.  He,  however,  avers  that  Redding, 
in  a very  insulting  manner,  told  the  Judge  that  he  “was  more 
meddlesome  than  the  other,”  and  that  he  “ was  too  d — d meddle- 
some,” or  words  to  that  effect;  which  insulting  language  so  excited 
the  Judge  that  he  seized  the  poker  and  commenced  the  assault. 

The  other  witness,  Craig,  Redding’s  journeyman,  testifies  in  sub- 
stance the  same  as  Redding,  as  to  what  passed  in  the  shop;  corrob- 
orates his  account  of  the  altercation  about  the  coat;  and  says  that 
he  considered  Doctor  Wilkinson  not  as  assisting  in  the  affray,  but 


m DEFENSE  OF  EDWARD  C.  WILKINSON. 


97 


as  attempting  to  separate  the  parties.  Some  of  the  witnesses  think 
that  the  Doctor  attempted,  in  the  street,  to  stab  Redding,  as  he  was 
getting  the  advantage  of  his  brother.  The  evidence  on  this  point, 
as  well  as  in  regard  to  the  conduct  of  Murdaugh,  is  somewhat  con- 
tradictory. In  the  view,  however,  which  I have  taken  of  the  case, 
the  discrepancy  is  of  little  importance. 

It  is  clearly  proven,  take  the  evidence  in  any  way,  that  Mr. 
Redding  used  insulting  language  towards  Judge  Wilkinson,  on  ac- 
count of  the  Judge’s  expression  of  an  opinion  in  relation  to  the  fit 
of  his  brother’s  coat.  What  was  the  exact  language  used  it  is 
difficult  to  ascertain. 

There  were  six  persons  in  the  room  when  the  quarrel  ensued — 
on  the  one  side,  the  prosecutor  (Redding),  his  foreman  (Craig),  and 
the  boy  (Weaver);  on  the  other,  the  three  defendants. 

All  the  evidence  on  this  point  has  been  derived  from  the  first 
party,  and  ought,  consequently,  to  be  taken  with  many  grains  of  al- 
lowance. The  prosecutor  has  given  you  his  version  of  the  affair, 
but  his  cunning  has  prevented  the  defendants  from  giving  you 
theirs.  Doctor  Wilkinson,  who  was  discharged  by  the  examin- 
ing magistrate,  has  been  included  in  the  indictment,  one  would 
judge,  for  the  very  purpose  of  precluding  his  testimony.  No  one 
can  doubt  that  the  conduct  of  Judge  Wilkinson,  however  repre- 
hensible, resulted  from  the  abusive  language  and  insulting  demeanor 
of  Mr.  Redding.  The  happy  facility  with  which  he  indulged,  on  a 
subsequent  occasion,  in  the  use  of  opprobrious  epithets,  gives  good 
reason  to  suppose  that  his  remarks  on  the  present  were  not  very 
guarded.  The  expression  deposed  to  by  Weaver  is,  I presume,  but 
a sample.  “You  are  too  d — d meddlesome,”  was  the  observation, 
accompanied,  no  doubt,  by  the  overbearing  and  bullying  manner 
which  illustrated  his  conduct  afterwards,  and  which  smacked  more 
of  his  spiritual  pursuit  as  the  Ganymede  of  a coffee-house,  than  of 
his  gentle  calling  as  a knight  of  the  shears  and  thimble.  He  cer- 
tainly did  on  this  occasion  “sink  the  tailor;”  for  tailors  are  pro- 
verbially polite  and  gentlemanly  in  their  deportment. 

I do  not  wish  to  be  considered  as  justifying  Judge  Wilkinson  or 
his  friends,  in  taking  notice  of  the  petulant  and  insolent  conduct  of 
Redding.  I think  they  would  have  better  consulted  their  character 
and  feelings  by  treating  him  with  contempt.  I will  go  further  and 
candidly  admit  that  I consider  their  course  reprehensible,  although 
it  resulted  from  passion  and  sudden  excitement,  and  not  from  de- 
liberate determination.  They  were  themselves  convinced  of  this  in 


OS 


SPEECH  OF  SE ARGENT  S.  PRENTISS 


a moment,  and  left  the  ground,  ashamed,  as  they  still  are,  of  their 
participation  in  the  matter — Judge  Wilkinson  rebuking  and  leading 
away  his  young  and  more  ardent  friend  Murdaugh,  who  seemed  to 
indicate  more  disposition  to  accept  the  boastful  challenge  of  Mr. 
Redding,  that  he  could,  if  they  would  lay  down  their  knives,  whip 
them  all  tnree.”  From  all  the  evidence  it  is  perfectly  clear  that,  in 
the  altercation,  no  personal  injury  resulted  to  any  of  the  parties; 
that  the  defendants  retired  voluntarily  from  the  quarrel;  while  Mr. 
Redding  retained  the  field,  and  with  boastful  taunts  and  insulting 
outcries  invited  a renewal  of  the  fight.  The  Mississippians  were 
manifestly  satisfied.  Not  so  Mr.  Redding;  he  was  “full  of  wrath 
and  cabbage,”  boiling  over  with  violence,  and  breathing  defiance 
and  vengeance  against  the  retreating  foe.  He,  doubtless,  retired  to 
his  coffee-house,  and  attempted  to  soothe  his  wounded  feelings  with 
some  of  the  delightful  beverages  which  it  was  occasionally  his 
profitable  province  to  dispense  to  others.  Here  his  friends  gathered 
around  him;  he  recounted  to  them  his  manifold  grievances;  he 
grew  warm  in  the  recital;  the  two  white-handled  pocket-knives, 
which  had  been  drawn  but  not  used  in  the  affray,  danced  before 
his  distempered  imagination  in  the  shape  of  trenchant  and  death- 
dealing blades.  These  little  instruments  of  ordinary  and  general 
use  became  at  once  bowie-knives,  “in  buckram.”  He  believed,  no 
doubt,  and  made  his  friends  believe,  that  he  was  an  injured  man, 
and  that  some  satisfaction  was  due  to  his  insulted  honor.  I have 
presented  this  part  of  the  case  to  you  simply  for  the  purpose  of 
enabling  you  to  judge  of  the  subsequent  action  of  the  parties,  and 
to  indicate  on  which  side  a desire  for  vengeance,  and  a combina- 
tion to  obtain  it,  were  most  likely  to  originate.  Upon  the  conclu- 
sion of  the  first  affray,  which  party  would  you  have  suspected  of  a 
disposition  to  renew  it  ? Where  could  lie  the  motive  on  the  part  of 
Judge  Wilkinson  and  his  friends  for  additional  violence  ? But  who 
that  is  acquainted  with  the  workings  of  human  nature,  or  the  indi- 
cations of  human  feeling,  will  hesitate  a moment  in  believing  that 
revenge  lurked  in  the  bosom  of  Redding,  and  sought  only  a safe 
opportunity  for  development  ? His  conduct  indicated  a state  of 
mind  precisely  fitted  for  the  formation  of  a conspiracy. 

5.  Evidence,  direct  and  circumstantial,  disclosing  a con-  • 

SPIRACY  TO  DESTROY  THE  DEFENDANTS. ThE 

DIRECT  PROOF. 

Having  laid  the  foundation,  I will  now  proceed  to  the  erection 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


99 


of  the  superstructure.  I will  show,  first  by  the  direct,  and  then  by 
the  circumstantial  proofs,  the  existence  of  this  foul  and  cowardly 
conspiracy.  I will,  however,  here  remark,  that  I doubt  not  the 
misrepresentations  and  falsehoods  of  Mr.  Redding,  in  relation  to 
the  transaction,  induced  several  of  the  persons  implicated  to  join 
the  combination,  who,  with  a correct  knowledge  of  the  facts,  would 
never  have  participated  in  the  affair. 

First,  then,  as  to  the  direct  and  positive  evidence.  Mr.  Jackson 
says,  that  immediately  after  the  first  affray  he  was  passing  Mr.  Red- 
ding’s, when  his  attention  was  attracted  by  loud  talking  in  the 
store,  which  induced  him  to  enter,  where  he  found  Redding,  John- 
son and  Meeks.  Johnson  was  expressing  his  opinion  as  to  the 
course  which  should  be  pursued  towards  the  Mississippians  for  their 
conduct,  and  said  they  “ ought  to  go  to  the  Galt  House  and  flog 
them.”  “Jack,”  said  he  to  Mr.  Redding,  “just  say  the  words,  and 
I’ll  go  for  Bill  Holmes,  and  we’ll  give  them  h — 1;”  at  the  same  time 
boasting,  in  his  own  peculiar  phraseology,  “ that  he  was  as  much 
manhood  as  was  ever  wrapped  up  in  so  much  hide.”  Upon  some 
hesitation  being  evinced  at  this  proposition,  Meeks  said:  “ Let’s  go 
anyhow,  and  we’ll  have  a spree.” 

Mr.  Jackson  further  deposes,  that  some  time  after  he  was 
stopped  by  Johnson,  on  the  street,  who  told  him  he  was  going  after 
Holmes;  that  Jack  Redding  was  a good  man,  and  that  he,  Jackson, 
ought  to  go  with  them  to  the  Galt  House  and  see  him  righted. 
Jackson  declined,  alleging  as  an  excuse  his  religious  character,  and 
his  desire  to  abstain  from  fighting;  whereupon  Johnson  exclaimed, 
in  his  ardent  zeal  for  enlisting  recruits,  that  “ church,  hell  or 
heaven  ought  to  be  laid  aside  to  right  a friend.”  Jackson  says  he 
understood  it  distinctly,  that  it  was  a fight  to  which  he  was  invited. 

Mr.  Jackson’s  testimony  is  entitled  to  credit.  He  did  not  par- 
ticipate in  the  affair,  and  he  can  have  no  inducement  to  speak 
falsely,  for  all  his  prejudices  must  naturally  be  enlisted  on  the  side 
of  the  prosecution.  His  character  is  sustained  by  unexceptionable 
^stimony,  and  has  been  impugned  by  no  one  except  the  salaman- 
Kr  gentleman,  whose  ambition  seems  to  be  to  pursue  in  the  next 
world  that  occupation  which  in  this  is  principally  monopolized  by 
the  descendants  of  Ham. 

The  next  direct  evidence  of  the  conspiracy  is  from  Mr.  Deering, 
whose  character  and  testimony  are  both  unimpeachable.  He  says 
he  was  passing  down  Market  street,  on  the  evening  of  the  affray, 
when  he  saw,  near  the  Market-house,  Johnson  in  company  with 


100 


SPEECH  OF  SEARGENT  S.  PRENTISS 


Holmes  and  others,  and  that  they  were  discussing  the  subject  of 
the  quarrel  between  the  Mississippians  and  Redding.  This  proves 
that  Johnson  was  carrying  into  effect  his  proposition  at  Redding’s 
store,  viz.,  “to  go  and  get  Bill  Holmes,  and  give  them  h — 1.”  He 
had  already  found  Bill  Holmes,  and,  we  shall  presently  see,  made 
all  his  arrangements  for  “giving  them  h — 1.” 

Mr.  Deering  says,  that  soon  after  he  met  Mr.  Johnson  again, 
who  inquired  for  Mr.  Turner,  the  City  Marshal.  Mr.  Deering  told 
him  he  would  be  too  late  with  his  officers,  for  the  Mississippians 
would  be  gone;  to  which  Mr.  Johnson  responded,  there  were 
enoiLgh  gone  there — that  if  they  caifie  dow7i  their  hides  would  7iot  hold 
shucks. ''  What  did  this  mean,  if  it  did  not  indicate  that  the  con- 
spiracy had  already  been  formed,  and  a portion  of  the  conspirators 
assembled  at  the  Galt  House  for  the  purpose  of  preventing  the 
game  from  escaping,  and  holding  it  at  bay  until  the  arrival  of  the 
rest  of  the  hunters.  They  had  gone,  it  seems,  too,  in  sufficient 
numbers  to  authorize  the  classical  boast  of  Mr.  Johnson,  “ that  if 
they  (meaning  the  Mississippians)  came  down  their  hides  wouldn’t 
hold  shucks.” 

There  is  one  more  witness  whose  testimony  is  positive  to  the 
point.  It  is  Mr.  Harris.  He  swears,  clearly  and  unequivocally, 
that  Johnson  met  him  on  the  evening  of  the  affray,  told  him  that 
the  Mississippians  had  insulted  Mr.  Redding,  and  directly  solicited 
him  to  go  with  Redding’s  friends  to  the  Galt  House  and  see  him 
righted.  Mr.  Harris  says  he  refused  to  go,  whereupon  Johnson  ex- 
claimed: “Are  you  a friend  of  Redding’s?”  thereby  showing  how 
strong  was  the  feeling  where  even  a mere  refusal  to  participate  in 
the  violence  was  considered  as  proof  that  the  man  refusing  was  no 
friend  of  Redding. 

Such,  gentlemen,  is  the  positive  proof  of  the  conspiracy.  It 
consists  of  the  evidence  of  three  disinterested  and  honest  wit- 
nesses, two  of  whom  were  directly  and  strongly  solicited  to  partici- 
pate in  the  matter.  The  testimony  of  each  of  these  witnesses  cor- 
roborates that  of  the  other  two.  The  facts  sworn  to  have  a natural 
order  and  connection.  There  is  verisimilitude  about  the  whole 
story,  which  would  not  belong  to  either  portion  by  itself.  The  tes- 
timony is  entitled  to  much  more  weight  than  if  it  had  been  the  re- 
cital of  a single  witness;  for  if  you  believe  one  of  the  witnesses, 
you  must  give  credit  to  all.  One  of  them  swears  that  he  heard 
Johnson,  in  Redding’s  shop,  propose  to  Redding  and  his  friends 
that  he  should  get  “Bill  Holmes”  and  “ give  them  h — 1.”  The 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


101 


next  witness  saw  Johnson  in  the  street  immediately  after,  in  com- 
pany with  “ Bill  Holmes,”  who  seems  to  have  been  the  Achilles  of 
these  Myrmidons,  explaining  to  him  his  dear  Patroclus,  Redding, 
had  been  insulted  by  the  hectoring  Mississippians,  and  urging  him 
to  vengeance.  Again  the  same  witness  met  Johnson,  and  was  in- 
formed by  him  that  a portion  of  his  banditti  had  already  taken 
possession  of  the  passes  of  the  Galt  House,  and  that,  if  the  Missis- 
sippians appeared,  “their  hides  wouldn’t  hold  shucks.”  The  third 
witness  swears  to  a positive  solicitation  from  Johnson,  that  he 
should  join  in  the  affray,  and  to  the  expression  of  strong  indigna- 
tion by  this  slayer  of  cattle  upon  his  refusal  to  do  so. 

Johnson  was  the  “ Malise  ” of  the  party,  the  “messenger  of 
blood  and  brand  ” sent  forth  to  summon  the  clansmen  true.  Too 
well  did  he  perform  his  duty.  He  collected  his  friends,  and  con- 
ducted them  like  beasts  to  the  slaughter,  while  he  himself  found  the 
“manhood,”  which,  according  to  his  boast,  distended  his  hide, 
rapidly  descending  to  his  heels.  But  enough,  for  the  present,  of 
this  vaporing  worthy;  I shall  pay  my  respects  to  him  hereafter. 

6.  The  circumstantial  evidence  showing  a conspiracy. 

I will  now  proceed,  in  pursuance  of  the  plan  I had  prescribed, 
to  show  the  existence  of  the  conspiracy  by  the  circumstantial  evi- 
dence, which  is,  if  possible,  more  irrefragable  than  the  direct  testi- 
mony, but  yet  most  beautifully  illustrates  and  confirms  it.  I will 
exhibit  to  you  a chain  of  facts,  linked  together  by  a natural  and 
necessary  connection,  which  I defy  even  the  strong  arm  of  the  op- 
posing counsel  to  break.  I will  weave  a cable  upon  whose  unyield- 
ing strength  the  defense  may  safely  rely  to  ride  out  the  storm  of 
this  furious  prosecution. 

Mr.  Redding  went  to  the  Galt  House  after  the  affair  at  his  shop, 
for  the  purpose,  as  he  avows,  of  obtaining  the  names  of  the  Missis- 
sippians, that  he  might  procure  process  against  them  from  the  civil 
authorities.  On  his  way,  as  he  confesses,  he  armed  himself  with  a 
deadly  weapon,  which,  however,  I am  bound  in  justice  to  say,  he 
never  had  the  courage  to  use.  A number  of  individuals  accom- 
panied and  followed  him,  whose  manner  and  strange  appearance 
excited  universal  attention,  even  in  the  bar-room  of  the  most  fre- 
quented hotel  in  the  western  country.  Their  strange  faces  and 
strange  action  excited  general  apprehension.  Nearly  every  witness 
to  the  unfortunate  catastrophe  has  deposed  that  he  was  struck  with 


102 


SPEECH  OF  SE ARGENT  S.  PRENTISS 


the  “strange  faces”  congregated  in  the  bar-room.  The  learned 
counsel  on  the  other  side  has  attempted  to  prove  in  the  examina- 
tion, and  will,  no  doubt,  insist  in  the  argument,  that  that  room  is 
daily  crowded  with  strangers  from  every  part  of  the  country;  tl.rt 
the  excellence  of  the  fare  and  the  urbanity  of  its  proprietors  invite 
to  the  Galt  House  a large  portion  of  the  traveling  public;  and  that, 
consequently,  it  is  nowise  remarkable  that  strange  faces  should  be 
observed  in  the  bar-room.  Though  I admit  the  gentleman’s  prem- 
ises, I deny  his  conclusion.  That  strangers  should  frequent  the 
Galt  House  is  not  wonderful;  they  do  it  every  day;  and  for  that 
very  reason  strange  faces,  under  ordinary  circumstances,  arouse 
neither  remark  nor  attention.  That  the  “ strange  faces  ” of  Mr. 
Redding’s  friends  should  have  excited  remark  and  scrutiny,  not 
only  from  the  inmates  of  the  house,  but  from  strangers  themselves, 
is  truly  wonderful,  and  can  be  accounted  for  only  by  admitting  that 
there  was  something  very  peculiar  in  their  conduct  and  appearance. 

They  went  there  prepared  for  preconcerted  action.  Having  a 
common  object,  and  a well  arranged  plan,  a glance,  or  a motion, 
sufficed  to  convey  intelligence  from  one  to  the  other.  Tell-tale 
consciences  spoke  from  each  countenance.  Their  looks,  unlike  the 
mystic  sign  of  the  mysterious  brotherhood,  gave  up  to  the  observer 
the  very  secret  they  wished  thereby  to  conceal.  There  is  a strange 
and  subtle  influence,  a kind  of  mental  sense,  by  which  we  acquire 
intimation  of  men’s  intentions,  even  before  they  have  ripened  into 
word  or  action.  It  seems,  on  such  occasions,  as  if  information  was 
conveyed  to  the  mind  by  a sort  of  natural  animal-magnetism,  with- 
out the  intervention  of  the  senses. 

Thus,  in  this  case,  all  the  bystanders  were  impressed  at  once 
with  the  conviction  that  violence  was  intended  by  the  strange  men 
who  had  attracted  their  attention.  These  men,  it  is  proven,  were 
the  friends  and  intimate  companions  of  Redding.  Most  of  them, 
though  living  in  the  city  of  Louisville,  were  not  in  the  habit  of  going 
to  the  Galt  House,  and  yet,  by  singular  coincidence,  had  all  assem- 
bled there  on  this  occasion. 

They  were  remarkably  stout  men,  constituting  the  very  elite  of 
the  thews  and  muscle  of  Louisville,  and  many  of  them  noted  for 
their  prowess  in  the  vulgar  broils  of  the  city.  Why  had  they  thus 
congregated  on  this  occasion  ? Why  their  strange  and  suspicious 
demeanor  ? I will  show  you  why.  It  will  not  be  necessary  to 
await  the  actual  fight  to  become  fully  conversant  with  their  pur- 
pose. It  found  vent  in  various  shapes,  but  chiefly  bubbled  out  in 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


103 


the  unguarded  remarks  and  almost  involuntary  expressions  of  the 
more  garrulous  of  the  party. 

I shall  be  compelled,  even  at  the  risk  of  being  tedious,  to 
glance  at  the  evidence  of  a number  of  the  witnesses  in  showing 
you  the  circumstances  at  the  Galt  House,  which  conclusively  indi- 
cate the  existence  of  the  conspiracy. 

Mr,  Everett,  one  of  the  proprietors  of  the  Galt  House,  says  he 
was  admonished  by  his  bar-keeper  that  a difficulty  was  about  to 
arise,  and  he  had  better  persuade  Judge  Wilkinson  out  of  the  bar- 
room. Accordingly,  he  went  in  and  took  the  Judge  away,  and  gives, 
as  a reason,  that  he  was  alarmed  at  the  strange  faces  in  the  bar- 
room, and  apprehended  difficulty;  alarmed,  not  because  the  faces 
were  those  of  strangers,  but  because  of  something  in  their  appear- 
ance which  indicated  concert  and  threatened  violence. 

Mr.  Trabue  was  waiting  in  the  room  for  supper,  and  says  he 
heard  some  one  remark,  if  the  Mississippians  had  not  gone  up- 
stairs, they  would  have  been  badly  treated;”  in  connection  with 
which  remark  Redding  was  pointed  out  to  him.  This,  it  seems, 
was  after  the  Judge  had  retired  at  the  solicitation  of  Mr.  Everett. 
Now,  who  were  to  have  treated  the  Mississippians  badly,  except 
Mr.  Redding  and  his  friends  ? Who  else  had  any  pretense  for  so 
doing  ? Can  you  doubt  for  a moment  that  the  remark  had  refer- 
ence to  Mr.  Redding’s  party  ? It  was  probably  made  by  one  of 
them;  but  whether  by  one  of  them  or  a stranger,  it  equally  indi- 
cated their  violent  determination.  ' Mr.  Trabue  also  proves,  that 
after  Judge  Wilkinson  retired  Mr.  Redding  also  retired;  and  when 
the  Judge  returned  into  the  bar-room  Redding  presently  entered, 
followed,  to  use  the  language  of  Mr.  Trabue,  “by  a right  smart 
crowd  ” of  his  friends.  Now,  why  did  Redding  thus  go  out  and 
return  with  his  gang  at  his  heels  ? Why  were  his  movements  thus 
regulated  by  the  motions  of  the  Judge?  Wherefore  was  it  that 
every  one  expected  a difficulty  ? 

Mr.  Redding,  according  to  his  own  story,  went  to  the  Galt 
House  simply  for  the  purpose  of  obtaining  the  names  of  the  gentle- 
men who  had  insulted  him. 

He  had  accomplished  his  ostensible  object.  He  had  obtained 
the  names,  and  more  than  that,  he  had  gratified  his  base  appetite 
by  abusing  one  of  the  gentlemen  in  the  most  indecent  and  disgust- 
ing manner.  No  rowdy  who  ever  visited  his  coffee-house  could 
have  excelled  him  in  this,  to  the  vulgar  mind,  sweet  mode  of  venge- 
ance. He  had  even  driven  the  Judge  from  the  room  by  the  over- 


104 


SPEECH  OF  SEARGENT  S.  PRENTISS 


whelming  torrent  of  his  billingsgate  epithets.  To  use  an  expres- 
sion suited  to  his  comprehension  and  feelings,  he  remained  “ cock 
of  the  walk.”  Yet  he  was  not  satisfied.  He  retired  and  watched 
the  return  of  the  Judge,  and  then,  emboldened  by  his  previous  im- 
punity, followed  with  his  cut-throat  band  to  complete  the  work  of 
vengeance. 

But  to  proceed  with  the  circumstantial  evidence.  Mr.  Mont- 
gomery states  that  he  was  with  Mr.  Trabue  at  the  Galt  House  when 
Redding  came  in  after  the  names,  and  also  when  he  came  back  just 
before  the  conflict;  heard  him  use  very  rough  language,  and  also 
heard  Halbert  remark  that  there  would  be  “ rough  work  with  the 
Mississippians.”  Now  this  fully  corroborates  the  testimony  of  Mr. 
Trabue  on  the  same  point,  who  heard  the  remark,  but  did  not  rec- 
ollect who  made  it.  This  Marshall  Halbert  is  the  man  who 
boasted,  after  the  affair  was  over,  that  he  had  knocked  down  one  of 
the  Mississippians  with  a chair,  while  his  back  was  towards  him, 
and  recounted  many  other  feats  of  daring  to  the  astonishment  of 
the  listeners. 

I should  judge  him  to  be  of  the  blood  of  honest  Jack  Falstaff, 
whose  killing,  as  everybody  knows,  was  always  by  word  of  mouth, 
and  whose  deeds  of  desperate  valor  were  so  unfortunate  as  to  find 
neither  historian  nor  believer,  except  himself.  At  all  events  Hal- 
bert, according  to  his  own  confession,  was  one  of  the  conspirators, 
and,  I have  no  doubt,  performed  his  part  in  the  affray  as  well  as 
he  knew  how,  and  with  much  greater  humanity  than  he  pretends. 
In  addition  to  the  above  remark  of  Halbert’s,  Mr.  Montgomery 
states  that  he  heard  several  persons  say,  at  a time  when  the  defend- 
ants were  not  in  the  room,  that  they  would  beat  the  Mississippians 
well. 

General  Chambers,  who  lives  opposite  the  Galt  House,  and  is 
in  the  daily  habit  of  visiting  it,  says  he  went  into  the  bar-room  just 
before  the  affray,  that  he  observed  persons  whom  he  was  not  in  the 
habit  of  seeing  there,  and  that,  from  their  appearance  and  de- 
meanor, his  suspicions  were  immediately  aroused. 

I attach  great  weight  to  the  testimony  of  General  Chambers. 
His  character  for  intelligence  and  observation  needs  no  comment 
from  me,  and  the  fact  that  his  suspicions  were  aroused  must  con- 
vince every  one  that  cause  for  alarm  existed. 

The  next  testimony  to  which  I shall  refer,  is  that  of  Mr.  Oliver. 
He  says  that  he  was  acquainted  with  Mr.  Meeks,  and  was  taking  a 
social  glass  with  him  on  the  evening  of  the  affray,  w'hen  Meeks 


I^^  DEFENSE  OF  EDWARD  C.  WILKINSON. 


105 


Started  off,  saying  he  must  go  to  the  Galt  House  (which  was  on  the 
opposite  side  of  the  street),  that  he  was  bound  to  have  a fight  that 
night,  and,  “by  G — d,  he  would  have  one.”  You  will  recollect 
that  Meeks  was  one  of  the  persons  who  collected  around  Redding 
immediately  after  the  affair  at  the  shop,  and  seconded  Johnson’s 
proposition  to  get  Bill  Holmes  and  “ give  them  h — 1,”  by  saying, 
“they  would  go  anyhow,  and  have  a spree.”  Can  you  doubt,  for  a 
moment,  that  the  observation  made  by  this  unfortunate  man  to  Mr. 
Oliver,  as  just  recited,  had  relation  to  the  previous  arrangement 
with  Johnson  and  others,  at  Redding’s  shop?  The  remark  of 
Meeks,  seems  to  me,  taken  in  connection  with  his  previous  and  sub- 
sequent conduct,  is  almost  conclusive  of  itself  as  to  the  existence  of 
a conspiracy.  I had  almost  forgotten  to  observe  Mr.  Oliver’s  state- 
ment that  Meeks,  before  he  started,  tied  a knot  in  the  small  end  of 
a cowhide  which  he  carried,  manifestly  to  prevent  it  from  slipping 
out  of  his  hand  in  the  conflict  which  he  so  eagerly  courted.  His 
knife,  by  a sort  of  pious  fraud,  had  been  taken  from  him  by  Mr. 
Oliver,  otherwise  the  result  might  have  been  very  different.  The 
prudent  caution  of  Mr.  Oliver  in  disarming  him  of  his  weapon 
proves  how  strong  must  have  been  the  indications  of  his  violent  dis- 
position. 

Mr.  Reaugh  says,  he  was  at  the  Galt  House  on  the  evening  of 
the  affray,  and  saw  Redding  in  conversation  with  Rothwell  and 
Halbert;  he  also  saw  Holmes  and  Johnson.  Something  in  the  de- 
meanor of  the  party  induced  him  to  ask  Johnson  what  was  the 
matter.  Johnson  replied  by  relating  the  affair  of  the  shop.  Upon 
which  Reaugh  observed,  “ if  the  Mississippians  fall  into  the  hands 
of  these  men,  they  will  fare  rather  rough.”  “Yes,”  replied  the 
worthy  butcher,  “ they  would  skin  them  quicker  than  I could  skin 
a sheep.”  Mr.  Reaugh  states  that  he  made  the  remark  to  Johnson, 
because  of  the  remarkable  size  and  strength  of  the  men  to  whom  he 
alluded,  the  strange  manner  in  which  they  had  assembled,  and  the 
fact  that  he  knew  them  to  be  friends  of  Redding,  and  that  Redding 
had  been  in  a quarrel  with  the  Mississippians. 

Mr.  Miller  states,  that  being  a member  of  the  grand  jury,  and 
having  heard  of  the  affray  at  Redding’s,  he  went  into  a tin-shop  to 
inquire  about  the  matter,  when  Mr.  Halbert  came  in  and  boasted 
much  of  what  he  intended  to  do.  Witness  then  went  to  the  Galt 
House  for  supper,  when  he  heard  Redding  abusing  Judge  Wilkin- 
son, and  challenging  him  for  a fight.  Witness  advised  Halbert  to 
take  Redding  away,  observing  that  he,  witness,  was  on  the  grand 


106 


SPEECH  OF  SEARGENT  S.  PRENTISS 


jury,  had  the  names,  and  would  have  all  the  matter  attended  to. 
Some  one,  he  thinks  Johnson,  then  remarked,  that  “if  he  didn’t 
leave  the  room,  he’d  see  the  finest  sort  of  beefsteaks  served  up.” 
Presently  he  heard  the  exclamation,  near  the  counter,  “ there  they 
are,  all  three  of  them!  ” and  the  crowd  immediately  closed  in  upon 
the  persons  so  indicated. 

Mr.  Waggry,  also  heard  the  remark  about  the  “steaks,”  and 
then  heard  some  one  exclaim,  “We’ll  have  a h — 1 of  a fight  here 
just  now.”  He  also  heard  Mr.  Miller  advise  Halbert  to  take  Red' 
ding  away. 

Mr.  Brown  swears  that  he  heard  Mr.  Miller  tell  Mr.  Redding 
he  was  not  taking  the  proper  course;  he  should  have  the  matter 
before  the  grand  jury;  whereupon  some  one  said,  “Hush  you.  Bill 
Miller,  if  it  comes  to  handy-cuffs  the  boys  will  settle  it.”  The  wit- 
ness then  became  so  apprehensive  of  a fight  that  he  left  the  room. 

Now,  though  Miller  is  not  positive  as  to  the  person  who  made 
use  of  the  expression  about  “ serving  up  beefsteaks,”  yet  no  one, 
I take  it,  will  hesitate  as  to  his  identity.  Who  but  Johnson  could 
speak  in  such  rich  and  technical  language?  Who  but  Johnson 
could  boast  of  “ having  as  much  manhood  as  was  ever  wrapped  in 
the  same  extent  of  hide?  ” While,  at  the  same  time,  he  had  so  ar- 
ranged it  that  the  “hides”  of  the  Mississippians  “would  not  hold 
shucks.”  Who  but  this  unmitigated  savage  would  talk  of  “ skin- 
ning ” a gentleman  “ quicker  than  I could  skin  a sheep  ? ” Why,  he 
rubs  his  hands,  licks  his  lips,  and  talks  of  serving  up  Christians  in 
the  shape  of  “ steaks,”  with  as  little  compunction  as  you  or  I would 
exhibit  in  eating  a radish.  The  cannibal!  He  should  go  at  once 
to  New  Zealand  and  open  his  shambles  there.  His  character 
would  suit  that  country;  and  I doubt  not,  he  would  obtain  great 
custom  and  find  ample  demand  for  his  human  “ steaks.”  Why,  gen- 
tlemen, I should  be  afraid  to  buy  meat  out  of  his  stall.  He  talks  as 
if  he  supplied  it  by  burking.  I should  expect  some  day  to  swallow 
an  unbaptized  infant  in  the  disguise  of  a reeking  pig,  or  to  eat  a 
fellow-citizen,  incog,  in  a “steak.”  Such  a fellow  should  be  looked 
to.  But,  again,  what  meant  the  expression  deposed  to  by  Reaugh, 
“ There  they  are,  all  three  of  them,  now  ? ” It  was  the  signal  for 
the  conspirators  to  close  in.  It  clearly  proves  a preconcerted  plan; 
no  names  were  mentioned,  and  without  a previous  understanding 
the  expression  would  have  been  nonsense.  Most  of  the  party  did 
not  know  the  Mississippians;  hence  it  was  necessary  that  some  one 
should  give  intimation  when  they  entered  the  room.  The  expres- 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


107 


sion,  “ There  they  are,”  was  the  signal  for  the  onset.  What 
meant  the  expression  sworn  to  by  Waggry,  “We’ll  have  a h — 1 
of  a fight  just  now.?  ” 

What  conclusion  do  you  draw  from  the  response  made  to  Miller, 
when  he  advised  Redding  to  bring  the  matter  before  the  grand 
jury:  “ Hush  you,  Billy  Miller,  and  if  it  comes  to  handy-cuffs  the 
boys  will  settle  it  ? ” If  what  comes  to  handy-cuffs  ? And  who 
were  the  boys  ? Why,  if  the  quarrel  with  the  Mississippians  comes 
to  handy-cuffs,  and  as  for  the  “boys,”  there  was  not  a man  present 
who  did  not  know  who  they  were. 

Redding  was  one  of  the  “boys,”  and  a very  bad  boy,  too.  Billy 
Holmes  was  another;  Marshall  Halbert  was  a “perfect  broth  of  a 
boy,”  and,  if  his  own  story  is  entitled  to  credit,  he  must  have  been 
twins,  for  he  acted  the  part  of  at  least  two  in  the  fight.  Bill  John- 
son was  as  much  of  a boy  as  ever  was  “ wrapped  up  in  the  same 
amount  of  hide,”  though  his  extraordinary  modesty  has  induced 
him  to  deny  the  soft  impeachment.  The  unfortunate  Meeks  and 
Rothwell  were  two  of  the  “boys;”  and  last,  though  not  least,  comes 
Harry  Oldham,  the  “Jack  Horner”  of  the  party.  He  “sat  in  the 
corner  ” till  the  fight  was  nearly  over,  when  he  “ put  in  his  thumb  ” 
and  “pulled  out,”  not  “a  plum,”  but  a pistol;  and  ever  since  has 
been  exclaiming:  “What  a brave  ‘boy’  am  I.” 

Yes,  gentlemen  of  the  jury,  these  were  the  “boys  ” whose  strange 
appearance  aroused  the  suspicions  and  excited  the  apprehensions 
of  all. 

Permit  me,  now,  to  call  your  attention  to  the  testimony  of  Mr. 
Donahue.  It  is  clear  and  conclusive.  He  swears,  that  on  the 
evening  of  the  affray,  and  just  before  it  occurred,  being  in  the  bar- 
room of  the  Galt  House,  he  heard  Rothwell  ask  Redding  “ if  they 
were  there  ? ” — upon  being  answered  in  the  negative,  he  exclaimed, 
“ Come,  let  us  go  up-stairs  and  bring  them  down,  and  give  them 
h — 1.”  Rothwell  was  the  brother-in-law  of  Redding,  had  been  in- 
formed by  Redding  of  his  grievances,  and  had  accompanied  him  to 
the  Galt  House.  Whom  did  he  mean  when  he  asked  if  “ they  were 
there  ? ” The  Mississippians,  undoubtedly.  Whom  did  he  pro- 
pose to  drag  from  their  rooms,  and  chastise  ? Of  course  the  same 
persons  for  whom  he  had  just  inquired.  Rothwell  asked  if  “ they 
were  there  ? ” When  the  defendants  came  in,  some  one  cried  out, 
“There  they  are,  all  three  of  them!”  These  two  expressions  mani- 
festly emanated  from  persons  who  understood  each  other,  and  were 
engaged  in  pursuit  of  a common  object. 


108 


SPEECH  OF  SEARGENT  S.  PRENTISS 


If  these  remarks  had  not  relation  to  some  previously  concerted 
plan  of  action,  they  would  be  unmeaning  and  foolish;  but  granting 
the  existence  of  the  conspiracy  I have  supposed,  and  every  word  is 
pregnant  with  meaning,  full  of  force,  weight  and  effect. 

Mr.  Raily  deposes  to  the  caution  given  by  Miller  to  Redding; 
also  to  the  fact  that  Redding  left  the  room  when  Judge  Wilkinson 
had  retired,  and  came  back  again  immediately  after  the  Judge  had 
returned.  He  also  saw  Oldham  after  the  affair  was  over,  putting  a 
pistol  into  his  pocket,  and  wiping,  with  his  handkerchief,  the  blood 
from  a double-edged  dirk. 

Mr.  Pearson  says  he  went  to  the  Galt  House  just  before  supper, 
on  the  evening  of  the  affray.  As  he  stood  behind  the  bar,  one 
Capt.  Rogers  observed  that  there  would  be  a fight.  Presently,  wit- 
ness met  Marshall  Halbert,  and  told  him  he  ought  to  stop  it,  mean- 
ing the  fight.  Halbert  said,  ‘‘no,  let  it  go  on.”  This  was  before 
Redding  had  commenced  abusing  Judge  Wilkinson,  and  proves 
that  the  idea  of  a fight  did  not  originate  from  that  circumstance. 
The  Judge  came,  and  Redding  abused  him.  He  went  out,  and 
Redding  followed.  He  returned,  and  presently  so  did  Redding 
with  a crowd  at  his  heels.  Seeing  the  crowd,  and  apprehending  vio- 
lence, Mr.  Pearson  was  in  the  act  of  leading  the  Judge  out  of  the 
room,  when  the  crowd  rushed  upon  Murdaugh;  the  affray  com- 
menced, and  the  Judge  stopped,  refusing  to  leave  the  room  until 
he  saw  his  friends  out  of  the  difficulty.  Need  I ask  you  whether 
he  was  right  in  so  doing  ? 

Mr.  Banks  says  he  saw  Redding  just  after  the  first  affray,  and 
asked  him  if  he  was  hurt.  He  says,  no,  but  that  “ he  would  have 
satisfaction,”  and  that  “he  could  whip  them,  all  three.” 

Dr.  Graham  says,  that  after  Judge  Wilkinson  had  left  the  bar- 
room the  first  time,  he  heard  some  one  observe,  “ the  d — d coward 
has  run.” 

Does  not  Mr.  Oldham’s  testimony  prove  the  conspiracy  ? I do 
not  mean  directly,  but  circumstantially.  He  says  he  was  not  pres- 
ent at  the  fight  in  the  bar-room,  and  knew  nothing  of  the  affair, 
nor  of  the  defendants.  He  says  he  was  standing  in  the  passage 
when  the  door  opened,  and  he  received  a cut  from  Dr.  Wilkinson, 
whom  he  knocked  down  for  his  pains. 

After  fighting  in  the  crowd  awhile,  he  saw  Murdaugh  retreating 
up-stairs,  and  heard  him  asking  for  a pistol,  whereupon  he  was  re- 
minded of  his  own  pistol,  which  he  immediately  drew  and  dis- 
charged at  the  young  gentleman,  giving  him,  not  the  weapon,  but  it 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


109 


contents,  to  wit,  a bullet  split  in  three  pieces.  This  worthy  gentle- 
man,  who  is  certainly 

“ as  mild  a mannered  man 
As  ever  scuttled  ship,  or  cut  a throat,” 

swears  positively  that  he  did  not  know  either  of  the  defendants; 
that  he  belonged  to  neither  party  in  the  affray;  and  that  he  fought, 
to  use  his  own  descriptive  and  unrivaled  phraseology,  entirely 
^upon  his  own  hook.” 

7.  Arraignment  of  Henry  Oldham,  a witness  for  the 

COMMONWEALTH. 

Surely,  Mr.  Henry  Oldham  must  be  the  knight  errant  of  the  age; 
the  Don  Quixote  of  the  West;  the  paragon  of  modern  chivalry. 
He  fights,  not  from  base  desire  of  vengeance,  nor  from  sordid  love 
of  gold;  not  even  from  patriotism  or  friendship;  but  from  a higher 
and  a loftier  sentiment:  from  his  pure,  ardent,  disinterested,  unso- 
phisticated love  of  glorious  strife.  Like  Job’s  war-horse,  he 
“ smelleth  the  battle  afar  off,  ’ and  to  the  sound  of  the  trumpet  he 
saith,  ha!  ha!  To  him 

“ There  is  something  of  pride  in  the  perilous  hour, 

Whate’er  be  the  shape  in  which  death  may  lower, 

For  fame  is  there,  to  tell  who  bleeds. 

And  honor’s  eye  on  daring  deeds.” 

You  have  heard,  gentlemen,  of  the  bright,  warm  isles  which  gem 
the  oriental  seas,  and  are  kissed  by  the  fiery  sun  of  the  tropics; 
where  the  clove,  the  cinnamon,  and  the  nutmeg  grow;  where  the 
torrid  atmosphere  is  oppressed  with  a delicious,  but  fierce  and  in- 
toxicating influence.  There  the  spirit  of  man  partakes  of  the  same 
spicy  qualities  which  distinguish  the  productions  of  the  soil.  Even 
as  the  rinds  of  their  fruits  split  open  with  nature’s  rich  excess,  so 
do  the  human  passions  burst  forth  with  an  overwhelming  violence 
and  prodigality  unknown,  till  now,  in  our  cold,  ungentle  clime. 
There,  in  the  islands  of  Java,  Sumatra,  the  Malaccas,  and  others  of 
the  same  latitude,  cases  similar  to  that  of  Mr.  Henry  Oldham  are 
of  frequent  occurrence.  In  those  countries  it  is  called  “ running  a 
muck.”  An  individual  becomes  so  full  of  fight  that  he  can  no 
longer  contain  it;  accordingly,  he  arms  himself  with  a species  of 
dagger,  very  similar  to  that  from  which  Mr.  Oldham  wiped  the 
blood  with  his  pocket  handkerchief,  and  rushing  into  the  public 


110 


SPEECH  OF  SEARGENT  S.  PRENTISS 


streets,  wounds  and  slays  indiscriminately  among  the  crowd.  It  is 
true  that  this  gallant  exploit  always  results  in  the  death  of  the  per- 
son performing  it,  the  people  of  the  country  entertaining  a foolish 
notion  that  it  is  too  dangerous  and  expensive  a mode  of  cultivating 
national  bravery.  But,  in  the  present  instance,  I trust  this  rule 
will  be  relaxed.  Mr.  Oldham  is  the  only  specimen  we  possess  of  this 
peculiar  habit  of  the  spice  islands,  and  he  should  be  preserved  as  a 
curiosity. 

But,  alas!  the  age  of  chivalry  has  gone  by;  and,  in  the  perform- 
ance of  my  duty,  I fear  I shall  have  to  exhibit  some  little  defects 
in  the  character  of  Mr.  Oldham,  calculated  in  this  censorious  day 
to  detract  from  his  general  merits.  It  is  with  great  pain,  I feel 
constrained  to  say  (for  he  is  a sort  of  favorite  of  mine),  that  telling 
the  truth  is  not  one  of  his  knightly  accomplishments,  and  that  his 
heroic  conduct  in  the  affray  at  the  Galt  House  was  nothing  more 
nor  less,  according  to  his  own  story,  than  a downright  cowardly 
attempt  at  assassination. 

First,  as  to  his  veracity.  He  says  that  he  was  cut  in  the  pas- 
sage by  Doctor  Wilkinson,  to  whose  identity  he  swears  positively; 
yet  it  is  proven,  by  half  a dozen  unimpeachable  witnesses,  that  the 
Doctor  was  at  this  time  hors  de  combat^  beaten  to  a mummy — al- 
most lifeless,  and  perfectly  limber — while  his  knife  had  fallen  from 
his  relaxed  and  nerveless  grasp  upon  the  floor  of  the  bar-room, 
where  it  was  afterwards  picked  up. 

Yet  Oldham  swears,  manfully,  that  it  was  the  Doctor  who  cut 
him;  though  when  asked  if  his  face  was  not  bloody,  he  replied  that 
the  passage  was  too  dark  to  enable  him  to  distinguish  faces.  If  he 
could  not  see  whether  the  face  of  the  person  who  cut  him  was 
bruised  or  bloody,  how  dares  he  swear  that  it  was  Doctor  Wilkin- 
son, whom  he  admits  he  had  never  seen  before  ? 

Yet,  though  his  vision  was  so  dull  in  regard  to  this  matter,  it 
was  almost  supernaturally  keen  upon  another.  He  swears  that  he 
was  cut  by  a dirk-knife  with  a white  handled  Now,  in  this  dusky 
passage,  where  he  could  not  see  the  assailant’s  face,  how  could  he 
distinguish  so  accurately  the  character  of  the  weapon,  and,  more 
especially,  of  the  handle  ? The  handle  of  such  a knife  as  either  of 
those  exhibited,  would  be  entirely  concealed  in  the  grasp  of  the 
holder.  But  Mr.  Oldham  could  see  through  the  hand,  and  swear 
to  the  color  of  the  handle,  even  when  he  could  not  aistinguish  the 
color  of  the  assailant’s  face. 

The  prosecution  seems  to  be  afflicted  with  a monomania  on  the 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


HI 


subject  of  white-handled  knives.  The  white  handles  caused  them 
greater  terror  and  excite  more  of  their  observation  than  the  blades. 
One  would  almost  be  led  to  suppose,  from  the  evidence,  that  the 
defendants  held  by  the  blades  and  fought  with  the  handles.  These 
white  handles  flash  before  their  eyes  like  the  bright  inscription  upon 
the  dim  steel  of  a Turkish  cimeter.  I hope,  though  with  many  mis- 
givings, that  none  of  them  will  ever  die  of  a ‘‘  white  handle.” 

But,  to  return  to  my  subject,  why,  in  the  name  of  all  that  is 
human  or  humane,  did  Oldham  shoot  at  Murdaugh,  whom,  he 
acknowledges,  he  did  not  know;  of  whose  connection  with  Doctor 
Wilkinson  he  was  unacquainted;  and  who  had  not  attempted  to  do 
him  the  slightest  injury?  According  to  his  own  account  of  the 
matter,  he  acted  the  part  of  a base  and  cowardly  assassin.  If  he 
tells  the  truth,  he  is  an  assassinating  villain;  if  he  does  not,  he  is  a 
perjured  villain.  I leave  him  choice  of  these  two  horns  of  the  di- 
lemma, though  I doubt  not  the  latter  is  the  one  upon  which  he  is 
destined  to  hang.  I cannot  believe  in  the  existence  of  such  a 
monster  as  he  would  make  himself  out  to  be,  and  have  offered  his 
conduct  to  you  as  evidence  of  the  existence  of  a conspiracy,  and  of 
his  participation  in  it.  It  is  better  that  he  should  have  the  excuse 
of  having  fought  in  Redding’s  quarrel,  than  no  excuse  at  all. 

Gentlemen  of  the  Jury — I have  now  performed  that  portion  of 
my  task  which  embraced  the  circumstantial  evidence.  Out  of  the 
mouths  of  fifteen  different  witnesses,  most  of  them  gentlemen  of 
high  character  and  undoubted  veracity,  I have  exhibited  to  you  an 
almost  countless  variety  of  circumstances,  the  occurrence  of  which, 
or  of  any  great  portion  of  them,  is  absolutely  incompatible  with  any 
other  hypothesis  than  that  of  the  existence  of  the  conspiracy,  which 
I proposed  at  the  outset  to  prove.  Upon  that  hypothesis,  all  these 
circumstances  are  easily  explicable,  and  in  perfect  accordance  with 
the  ordinary  principles  of  human  action. 

I have  combined  the  scattered  strands  of  evidence;  I have  fin- 
ished the  cable  which  I promised;  and  now  challenge  the  opposing 
counsel  to  try  their  strength  upon  it.  They  may  pick  it  into 
oakum;  but  I defy  them  to  break  it. 

8.  The  defendants,  from  their  situation,  not  likely  to 

PROVOKE  A QUARREL. CHARACTER  OF  THE 

PARTICIPANTS  COMPARED. 

There  is  one  other  argument  in  favor  of  the  view  that  I have 
taken  of  the  origin  of  this  unfortunate  affray,  which  may  be  prop- 


113  SPEECH  OF  SEARGENT  S.  PRENTISS 

erly  introduced  at  this  time,  and  with  which  I shall  close  this 
branch  of  the  subject. 

It  arises  out  of  the  respective  characters  and  positions  in  life  of 
the  two  parties,  and  is,  in  my  opinion,  entitled  to  great  weight. 
Who,  in  view  of  his  character  and  situation,  was  most  likely  to  have 
sought  and  provoked  the  unfortunate  conflict — Judge  Wilkinson  or 
Mr.  Redding.?  The  conduct  of  the  Judge,  under  the  opprobrious 
epithets  heaped  upon  him  by  Redding,  in  the  bar-room,  sufficiently 
indicates  that,  though  he  had  previously  given  way  to  sudden  pas- 
sion, he  was  now  cool,  collected  and  forbearing.  His  mind  had 
recovered  its  balance,  and  he  behaved  on  this  occasion,  as  well  as 
subsequently,  with  philosophical  calmness.  I doubt,  gentlemen, 
whether  any  of  you  would  have  permitted  Mr.  Redding  to  indulge, 
with  impunity,  in  such  unmeasured  abuse.  But  the  situation  of  the 
Judge  was  peculiar,  and  every  inducement  which  could  operate 
upon  a gentleman  warned  him  against  participation  in  broils  and 
battles.  With  buoyant  feelings  and  pulse-quickening  anticipations, 
he  had  come  more  than  a thousand  miles,  upon  a pilgrimage  to  the 
shrine  of  beauty,  and  not  of  blood;  upon  an  errand  of  love,  and  not 
of  strife.  He  came  to  transplant  one  of  Kentucky’s  fairest  flowers 
to  the  warm  gardens  of  the  sunny  South.  The  marriage  feast  was 
spread;  the  bridal  wreath  was  woven;  and  many  bounding  hearts 
and  sparkling  eyes  chided  the  lagging  hours.  The  thoughts  of  the 
bridegroom  dwelt  not  upon  the  ignoble  controversy,  which,  for  an 
unguarded  moment,  had  occupied  his  attention,  but  upon  the  bright 
and  glorious  future,  whose  rapturous  visions  were  about  to  become 
enchanting  realities. 

Under  such  circumstances  Judge  Wilkinson  could  not  have  de- 
sired the  conflict.  Had  the  fires  of  hell  blazed  in  his  bosom^  they 
must  have  been  quenched  for  a while.  The  very  fiend  of  discord 
would  have  been  ashamed,  fresh  from  a voluntary,  vulgar,  bloody 
quarrel,  and  reeking  with  its  unsightly  memorials,  to  have  sought 
the  gay  wedding  banquet. 

You  cannot  believe  he  coveted  or  courted  the  unfortunate  affray, 
without,  at  the  same  time,  considering  him  destitute,  not  only  of  all 
sentiment  of  delicacy  and  refinement,  but  of  every  characteristic  of 
a man.  Does  his  previous  character  warrant  such  a conclusion  ? He 
has,  as  has  been  shown  to  you  in  evidence,  ever  maintained  the 
character  of  an  honorable  and  upright  gentleman.  I see,  by  the 
sneer  upon  the  lip  of  the  adverse  counsel,  that  the  term  grates 
harshly  upon  his  sensibilities.  But,  I repeat  it,  Judge  Wilkinson 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


113 


has  ever  maintained  the  character  of  a gentleman;  a character  di- 
rectly at  war  with  the  supposition  that  his  conduct  on  this  occasion 
resulted  otherwise  than  from  necessity.  I mean,  by  a “ gentleman,” 
not  the  broadcloth,  but  the  man;  one  who  is  above  doing  a mean, 
a cowardly  or  a dishonest  action,  whatever  may  be  the  temptation; 
one  who  forms  his  own  standard  of  right  and  will  not  swerve  from 
it;  who  regards  the  opinions  of  the  world  much,  but  his  own  self- 
respect  more.  Such  men  are  confined  to  no  particular  class  of  so- 
ciety, though,  I fear,  they  do  not  abound  in  any.  I will  save  the 
learned  counsel  the  trouble  of  translating  his  sneer  into  language, 
by  admitting  that  they  are  to  be  found  as  readily  among  mechanics 
as  elsewhere. 

Such  a man  I believe  Judge  Wilkinson  to  be.  Such  has  ever 
been  his  character,  and  he  is  entitled  to  the  benefit  of  it  on  this  oc- 
casion. It  ought  to  have,  and  I know  will  have,  very  great  weight 
with  you.  Good  character  always  has  been,  and  ever  should  be,  a 
wall  of  strength  around  its  possessor,  a sevenfold  shield  to  him 
who  bears  it. 

This  is  one  of  the  advantages  which  virtue  has  over  vice — honor- 
able over  dishonorable  conduct — an  advantage  which  it  is  the  very 
highest  interest  of  society  to  cherish  and  enforce.  In  proportion 
to  the  excellence  of  a man’s  character  is,  and  ever  ought  to  be,  the 
violence  of  the  presumption  that  he  has  been  guilty  of  crime.  I 
appeal,  then,  to  Judge  Wilkinson’s  character,  to  prove  that  he  could 
not  have  desired  this  unfortunate  controversy;  that  it  is  impossible 
he  should  have  been  guilty,  under  the  circumstances  which  then 
surrounded  him,  of  the  crime  of  willful  and  malicious  murder. 
What,  on  the  other  hand,  was  the  condition  of  the  conspirators  ? 
Redding  had  been  going  about  from  street  to  street,  like  Peter  the 
Hermit,  preaching  up  a crusade  against  the  Mississippians.  John- 
son, like  Tecumseh — but  no,  I will  not  assimilate  him  to  that  noble 
warrior — like  an  Indian  runner,  was  threading  each  path  in  the 
city,  inciting  his  tribe  to  dig  up  the  tomahawk  and  drive  it,  not  into 
the  scalps,  but  the  “steaks”  of  the  foe.  But  I will  not  pursue  this 
point  at  greater  length. 

9.  The  defendants  believed  a conspiracy  existed,  whether 

IN  FACT  IT  DID  OR  DID  NOT. 

I proposed,  after  arguing  the  position,  that  there  actually  was  a 
conspiracy  to  chastise  the  defendants,  and  inflict  upon  them  great 
bodily  harm,  to  show,  in  the  next  place,  that  the  defendants  had 


114 


SPEECH  OF  SEARGENT  S,  PRENTISS 


good  reason  to  believe  such  a conspiracy  existed,  whether  in  point 
of  fact  it  did  or  not.  Most  of  the  arguments  bearing  upon  this 
proposition  have  been  already  advanced  in  support  of  the  other. 
These  I will  not  repeat.  There  are  one  or  two  others  worthy  of  notice. 
What  could  Judge  Wilkinson  have  supposed  from  the  conduct  of 
Redding,  but  that  he  sought  and  provoked  a difficulty  ? What  else 
could  he  conclude  from  the  unmitigated  abuse  which  was  heaped 
upon  him  from  the  opening  of  the  very  sluices  of  vulgarity  ? That 
the  Judge  apprehended  violence  is  evident  from  the  warning  which 
he  gave.  He  told  Redding  that  he  might  say  what  he  pleased,  but 
not  to  lay  his  hands  upon  him;  if  he  did,  he  would  kill  him.  He 
could  not  be  supposed  to  know  that  Redding  came  only  for  the 
names.  When  Meeks  stepped  up  to  Murdaugh  and  struck  him 
with  his  clubbed  whip,  while  the  crowd  closed  in  around,  what 
could  Murdaugh  reasonably  expect  but  violence  and  bodily  harm, 
resulting  from  preconcerted  arrangement  ? Without  going  at  length 
into  an  argument  on  this  point,  I take  it  for  granted,  no  one  will 
deny  that  the  defendants  had  ample  grounds  for  apprehending  the 
existence,  on  the  part  of  Mr.  Redding  and  his  friends,  of  a con- 
spiracy to  commit  upon  them  personal  violence. 

Let  us  now  look  a moment  at  the  conduct  of  the  defendants,  at 
the  Galt  House,  and  see  whether  it  transcended  the  bounds  of  right, 
reason  or  prudence.  When  Murdaugh  and  the  Doctor  entered  the 
room,  the  exclamation  was  made  by  some  one  loud  enough  for  all 
to  hear:  “ I'here  they  are,  all  three  of  them,  now;”  upon  which, 
according  to  nearly  all  the  witnesses,  Mr.  Redding  made  the  remark 
to  Murdaugh:  “ You  are  the  man  that  drew  the  bowie-knife  on  me.” 
You  will  recollect.  Redding  had  just  crossed  Judge  Wilkinson’s 
path,  and  placed  himself  with  his  back  against  the  counter,  mani- 
festly with  the  object  of  bringing  on  the  fight.  Murdaugh,  indig- 
nant at  being  publicly  charged  with  having  drawn  a bowie-knife 
upon  an  unarmed  man,  replied,  “ that  any  one  who  said  he  had 
drawn  a bowie-knife  told  a d — d lie;”  whereupon  instantly  steps  up 
Meeks,  with  his  knotted  cowhide,  exclaiming:  “You  are  the  d — d 
little  rascal  that  did  it  ” — at  the  same  time  inflicting  upon  him  a 
very  severe  blow.  By-the-by,  this  assertion  of  Meeks  proves  that 
he  had  been  at  Redding’s  after  the  first  affray,  and  heard  a full  ac- 
count of  it.  It  is  urged  against  the  Judge,  that  when  Mr.  Everett 
led  him  to  his  room,  he  asked  for  pistols.  I think  an  argument  in 
his  favor  may  be  drawn  from  this  circumstance.  His  requisition 
for  arms  proves  that  he  considered  himself  and  his  friends  in  great 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


115 


personal  danger.  He  manifestly  required  them  not  for  offense, 
but  for  defense.  Had  he  intended  an  attack,  he  would  not  have 
gone  down  to  the  bar-room  without  first  obtaining  the  weapons  h^ 
desired.  Men  do  not  voluntarily  attempt  the  lives  of  others  with* 
out  being  well  prepared.  It  is  evident  that  Judge  Wilkinson  and 
his  friends  thought  only  of  the  protection  of  their  own  persons,  for 
they  went  down-stairs  provided  only  with  the  ordinary  weapons 
which  they  were  accustomed  to  bear.  Murdaugh  and  the  Doctor 
had  a pocket-knife  each;  the  same  they  had  previously  carried. 
They  had  added  nothing  to  their  armor,  either  offensive  or  de- 
fensive. The  Judge,  apprehensive  of  difficulty,  had  taken  his 
bowie-knife,  which,  probably,  he  had  not  previously  worn.  When, 
at  the  solicitation  of  Mr.  Everett,  he  retired,  he  doubtless  informed 
his  friends  of  what  had  just  transpired  in  the  bar-room,  and  ex- 
pressed his  fears  of  violence.  This  accounts  for  the  readiness  with 
which  Murdaugh  met  the  assault  of  the  two  powerful  men  who 
simultaneously  rushed  upon  him. 

lOo  The  part  taken  in  the  affray  by  the  respective 
DEFENDANTS. 

The  evidence  is  conclusive  that  Meeks  commenced  the  attack 
upon  Murdaugh,  by  two  rapid,  violent  blows  of  a cowhide,  accom- 
panied by  a heavy  blow  from  a stick  or  cane  in  the  hands  of  Roth- 
well.  At  the  same  time  he  seized  the  hand  of  Murdaugh,  in  which, 
prepared  for  defense,  was  an  open  knife;  but  Murdaugh,  with  cool- 
ness and  celerity,  changed  the  weapon  to  his  left  hand,  and  used  it 
according  to  the  dictates  both  of  law  and  common  sense.  The 
very  first  blow  had  driven  him  to  the  wall.  The  crowd  closed 
around  him;  he  could  not  retreat,  and  was  justified,  according  to 
the  strictest  and  most  technical  principles  of  even  English  juris- 
prudence, to  take  the  life  of  the  assailant.  No  man  but  a fool  or 
a coward  could  have  acted  otherwise  than  he  did.  Was  he  not, 
according  to  the  rule  read  by  the  District  Attorney,  in  imminent 
danger  of  his  life  or  of  great  bodily  harm  ? Let  the  unhealed 
wound  upon  his  head  respond.  Let  his  hat,  which  has  been  exhib- 
ited to  you,  answer  the  question.  Upon  this  you  may  perceive  two 
incisions,  which  must  have  been  caused  by  a sharp,  cutting  instru- 
ment. No  obtuse  weapon  was  capable  of  the  effect.  The  blows 
were  manifestly  sufficient  to  have  caused  death,  but  for  the  inter- 
vention of  the  elastic  material  upon  which  their  principal  force 
was  expended.  The  part,  then,  taken  by  Murdaugh  in  the  affray, 


116 


SPEECH  OF  SEARGEXT  S.  PRENTISS 


was  clearly  defensive  and  justifiable.  It  is  not  pretended  that 
Doctor  Wilkinson  took  any  other  part  in  the  affray  than  attempting 
to  escape  from  its  violence,  unless  you  notice  the  evidence  of  Old- 
ham, that  he  cut  him  as  he  fled  from  the  room.  He  was  beaten, 
first  by  Rothwell,  then  by  Holmes,  and  if  you  take  their  own  state- 
ments, by  those  two  worthies,  Halbert  and  Oldham.  He  was 
crushed  almost  to  atoms.  He  had  not  a chance  even  for  self-de- 
fense. Rothwell  had  left  Murdaugh,  after  striking  him  one  blow, 
in  charge  of  Meeks,  and  fell  upon  the  Doctor.  While  beating  the 
Doctor,  he  was  stabbed  by  the  Judge,  near  the  dining-room  door. 
The  Doctor  fled  round  the  room,  still  followed  by  Rothwell,  who 
was  again  struck  by  the  Judge  when  upon  the  opposite  side.  The 
two  blows  paralyzed  his  powers;  when  Holmes  stepped  in  and  so 
completely  prostrated  the  Doctor  that  he  was  compelled  to  hold 
him  up  with  one  hand  while  he  beat  him  with  the  other. 

Neither  offensive  word  nor  action,  upon  this  occasion,  on  the 
part  of  Dr.  Wilkinson,  is  proven  or  pretended.  It  is  perfectly  clear 
that  he  was  beaten  by  Redding’s  friends,  simply  because  he  was  of 
the  Mississippi  party.  I consider  it  highly  disgraceful  to  the  Grand 
Jury  who  found  the  bill,  that  he  was  included  in  it. 

In  reference  to  the  part  taken  by  Judge  Wilkinson  : It  is  proven 
beyond  contradiction,  by  Mr.  Pearson,  a gentleman  of  undoubted 
veracity,  that  the  Judge,  at  his  solicitation,  was  in  the  act  of  leav- 
ing the  room  as  the  affray  commenced;  when,  witnessing  the  attack 
upon  Murdaugh,  he  stopped,  refusing  to  leave  until  he  saw  the 
result  of  the  controversy  in  which  his  friend  was  engaged.  Stand- 
ing in  the  corner  of  the  room,  he  did  not  at  first  take  part  in  the 
conflict,  perceiving,  doubtless,  that  Murdaugh  was  making  good  his 
own  defense.  Presently,  however,  he  cast  his  eyes  around  and  saw 
his  brother  trodden  under  foot,  entirely  powerless,  and  apparently 
either  dead  or  in  imminent  danger  from  the  fierce  blows  of  Roth- 
well, who,  as  you  have  heard,  was  a man  of  tremendous  physical 
power,  and  armed  with  a bludgeon,  some  say  a sword  cane.  Then 
it  was  he  thought  it  necessary  to  act;  and  advancing  through  the 
crowd  to  the  spot,  he  wounded  the  assailant  who  was  crushing  out 
his  brother’s  life.  Gen.  Chambers  swears  positively  that  Rothwell 
was  beating,  with  a stick,  and  with  great  severity,  some  one,  whom 
the  other  witnesses  identify  as  the  Doctor,  at  the  time  he  was 
stabbed  near  the  dining-room  door.  This  produced  a slight  di- 
version in  the  Doctor’s  favor,  who  availed  himself  of  it  by  retreat- 
ing, in  a stooping  posture,  towards  the  passage  door.  Rothwell, 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


IIT 


however,  pursued  and  beat  him  down,  but  was  arrested  in  his  vio- 
lence by  another  blow  from  Judge  Wilkinson,  which,  together  with 
the  puncture  in  his  throat,  received,  in  all  probability,  from  a chance 
thrust  of  the  sword  cane  in  the  hands  of  one  of  his  own  party,  dis- 
abled him  and  caused  his  death.  About  this  time  Holmes  was 
completing  Rothwell's  unfinished  work,  and  the  Doctor,  hunted 
entirely  around  the  room,  fell,  utterly  exhausted,  at  the  feet  of  his 
relentless  pursuers.  It  is  wonderful  that  he  had  strength  enough  to 
escape  with  Murdaugh  and  the  Judge. 

Such,  briefly,  were  the  parts  enacted  by  these  defendants,  re- 
spectively, in  this  unfortunate  affray,  the  result  of  which  none  regret 
more  than  themselves.  Considering  the  proof  of  the  conspiracy, 
and  the  knowledge,  or  even  the  reasonable  apprehension  on  the 
part  of  the  defendants,  of  its  existence,  as  affording  them  ample 
justification  for  their  participation  in  the  matter,  I have  not  thought 
it  necessary  to  go  into  a minute  analysis  of  the  evidence  on  this 
branch  of  the  subject,  nor  to  attempt  to  reconcile  those  slight  dis- 
crepancies which  will  always  occur  in  the  testimony  of  the  most 
veracious  witnesses,  in  giving  an  account  of  the  transaction  viewed 
from  different  positions  and  at  different  periods  of  time. 

II.  The  law  of  self-defense. — Circumstances  which  justify 

THE  TAKING  OF  LIFE. 

The  law  of  self-defense  has  always  had  and  ought  to  have  a 
more  liberal  construction  in  this  country  than  in  England.  Men 
claim  more  of  personal  independence  here  ; of  course  they  have 
more  to  defend.  They  claim  more  freedom  and  license  in  their 
actions  towards  each  other,  consequently  there  is  greater  reason  for 
apprehending  personal  attack  from  an  enemy.  In  this  country  men 
retain  in  their  own  hands  a larger  portion  of  their  personal  rights 
than  in  any  other;  and  one  will  be  authorized  to  presume  an  inten- 
tion to  exercise  and  enforce  them,  upon  grounds  that,  in  other 
countries,  would  not  excite  the  slightest  suspicion.  It  is  the  appre- 
hension of  impending  harm,  and  not  its  actual  existence,  which 
constitutes  the  justification  for  defensive  action.  If  mine  enemy 
point  at  me  an  unloaded  pistol  or  a wooden  gun,  in  a manner  cal- 
culated to  excite  in  my  mind  apprehensions  of  immediate,  great 
bodily  harm,  I am  justifiable  in  taking  his  life,  though  it  turn  out 
afterwards  that  I was  in  no  actual  danger. 

So,  on  the  other  hand,  if  I take  the  life  of  another,  without 


118 


SPEECH  OF  SEARGENT  S.  PRENTISS 


being  aware  of  any  intended  violence  on  his  part,  it  will  constitute 
no  excuse  for  me  to  prove  that  he  intended  an  attack  upon  me. 

The  apprehension  must  be  reasonable,  and  its  reasonableness 
may  depend  upon  a variety  of  circumstances — of  time,  place  and 
manner,  as  well  as  of  character.  The  same  appearance  of  danger 
would  authorize  greater  apprehension,  and  of  course  readier  de- 
fensive action,  at  night  than  in  the  day-time.  An  attack  upon  one 
in  his  own  house  would  indicate  greater  violence,  and  excuse 
stronger  opposing  action,  than  an  attack  in  the  street. 

Indications  of  violence  from  an  individual  of  known  desperate 
and  dangerous  character  will  justify  defensive  and  preventive  ac- 
tion, which  would  be  inexcusable  towards  a notorious  coward.  A 
stranger  may  reasonably  indulge  from  the  appearance  or  threats  of 
a mob  apprehension  that  would  be  unpardonable  in  a citizen  sur- 
rounded by  his  friends  and  neighbors. 

Bearing  these  observations  in  mind,  let  us  look  at  the  situation 
of  the  defendants.  They  were  attacked  at  their  hotel,  which,  for 
the  time  being,  was  their  house.  They  were  strangers,  and  a fierce 
mob  had  gathered  around  them,  indicating,  both  by  word  and  deed, 
the  most  violent  intentions.  They  were  three  small,  weak  men, 
without  friends — for  even  the  proprietor  of  the  house,  who  should 
have  protected  them,  had  become  alarmed,  and  left  them  to  their 
fate.  Their  enemies  were,  comparatively,  giants — dangerous  in 
appearance  and  desperate  in  action.  Was  there  not  ample  ground 
for  the  most  fearful  apprehensions  ? 

12.  The  propositions  advanced  by  the  prosecution,  an- 
swered.— Illustrations  of  the  law  of 

SELF-DEFENSE. 

But  the  District  Attorney  says,  they  are  not  entitled  to  the 
benefit  of  the  law  of  self-defense,  because  they  came  down  to  sup- 
per, and  thus  placed  themselves  voluntarily  within  reach  of  the 
danger.  According  to  his  view  of  the  case,  they  should  have  re- 
mained in  their  chamber,  in  a state  of  siege,  without  the  right  to 
sally  forth  even  for  provisions;  while  the  enemy,  cutting  off  their 
supplies,  would  doubtless  soon  have  starved  them  into  a surrender. 
But  it  seems  there  was  a private  entrance  to  the  supper  table,  and 
they  should  have  skulked  in  through  that.  No  one  but  a craven 
coward,  unworthy  of  the  privileges  of  a man,  would  have  followed 
such  a course.  The  ordinary  entrance  to  supper  was  through  the 
bar-room.  They  had  a right  to  pass  this  way;  no  law  forbade  it. 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


119 


Every  principle  of  independence  and  self-respect  prompted  it.  And 
through  that  bar-room  I would  have  gone,  as  they  did,  though  the 
floor  had  been  fresh  sown  with  the  fabled  dragon’s  teeth,  and  brist- 
ling with  its  crop  of  armed  men. 

I care  not  whether  the  assailing  party  had  deadly  weapons  or 
not;  though  I will,  by-and-by,  show  they  had,  and  used  them,  too. 
But  the  true  question  is,  whether  the  defendants  had  not  good 
reason  for  believing  them  armed  and  every  way  prepared  for  a 
desperate  conflict.  I have  shown  already  that  Dr.  Wilkinson  and 
Murdaugh  did  not  transcend  the  most  technical  principle  laid  down 
by  the  commonwealth’s  attorney;  not  even  that  which  requires  a 
man  to  run  to  the  wall  before  he  can  be  permitted  to  defend  him- 
self— a principle  which,  in  practice,  is  exploded  in  England,  and 
never  did  obtain  in  this  country  at  all.  But,  says  the  learned  at- 
torney, Judge  Wilkinson  interfered  and  took  part  before  he  was 
himself  attacked;  he  had  no  right  to  anticipate  the  attack  upon 
himself;  he  had  no  right  to  defend  his  friend;  he  had  no  right  to 
protect  his  brother’s  life.  Now  I differ  from  the  worthy  counsel  on 
all  these  points:  I think  he  had  a right  to  prevent,  by  anticipating 
it,  violence  upon  his  person;  he  had  a right  to  defend  his  friend, 
and  it  was  his  sacred  duty  to  protect  his  brother’s  life. 

Judge  Wilkinson  was  the  most  obnoxious  of  the  party;  his 
friends  were  already  overpowered;  he  could  not  expect  to  escape; 
and  in  a moment  the  whole  force  of  the  bandit  gang  would  have 
turned  upon  him. 

The  principles  of  self-defense,  which  pefvade  all  animated  na- 
ture, and  act  towards  life  the  same  part  that  is  performed  by  the 
external  mechanism  of  the  eye  towards  the  delicate  sense  of  vision 
— affording  it,  on  the  approach  of  danger,  at  the  same  time,  warning 
and  protection — do  not  require  that  action  shall  be  withheld  till  it 
can  be  of  no  avail.  When  the  rattlesnake  gives  warning  of  his  fatal 
purpose,  the  wary  traveler  waits  not  for  the  poisonous  blow,  but 
plants  upon  his  head  his  armed  heel,  and  crushes  out  at  once  his 
venom  and  his  strength.”  When  the  hunter  hears  the  rustling  in 
the  jungle,  and  beholds  the  large  green  eyes  of  the  spotted  tiger 
glaring  upon  him,  he  waits  not  for  the  deadly  spring,  but  sends  at 
once  through  the  brain  of  his  crouching  enemy  the  swift  and  leaden 
death. 

If  war  was  declared  against  your  country  by  an  insulting  foe, 
would  you  wait  till  your  sleeping  cities  were  wakened  by  the  terrible 
music  of  the  bursting  bomb  ? till  your  green  fields  were  trampled 


120 


SPEECH  OF  SEARGENT  S.  PRENTISS 


by  the  hoofs  of  the  invader,  and  made  red  with  the  blood  of  your 
brethren  ? No!  you  would  send  forth  fleets  and  armies;  you  would 
unloose  upon  the  broad  ocean  your  keen  falcons;  and  the  thunder 
of  your  guns  would  arouse  stern  echoes  along  the  hostile  coast. 
Y et  this  would  be  but  national  defense,  and  authorized  by  the  same 
great  principle  of  self-protection,  which  applies  no  less  to  individu- 
als than  to  nations. 

13.  Defendants’  conduct  eulogized. — They  took  life  from 

NECESSITY,  NOT  FROM  MALICE. 

But  Judge  Wilkinson  had  no  right  to  interfere  in  defense  of  his 
brother;  so  says  the  commonwealth’s  attorney.  Go,  gentlemen, 
and  ask  your  mothers  and  sisters  whether  that  be  law.  I refer  you 
to  no  musty  tomes,  but  to  the  living  volumes  of  Nature.  What! 
A man  not  permitted  to  defend  his  brother  against  conspirators? 
against  assassins,  who  are  crushing  out  the  very  life  of  their  bruised 
and  powerless  victim  ? Why,  he  who  would  shape  his  conduct  by 
such  a principle  does  not  deserve  to  have  a brother  or  a friend. 
To  fight  for  self  is  but  the  result  of  an  honest  instinct  which  we 
have  in  common  with  the  brutes.  To  defend  those  who  are  dear 
to  us  is  the  highest  exercise  of  the  principle  of  self-defense.  It 
nourishes  all  the  noblest  social  qualities,  and  constitutes  the  germ 
of  patriotism  itself. 

Why  is  the  step  of  the  Kentuckian  free  as  that  of  the  bounding 
deer  ? firm,  manly  and  confident  as  that  of  the  McGregor  when  his 
foot  was  on  the  heather  of  his  native  hills  and  his  eye  on  the  peak 
of  Ben  Lomond?  It  is  because  he  feels  independent  and  proud; 
independent  in  the  knowledge  of  his  rights,  and  proud  in  the  gen- 
erous consciousness  of  ability  and  courage  to  defend  them,  not 
only  in  his  own  person,  but  in  the  persons  of  those  who  are  dear 
to  him. 

It  was  not  the  blood  that  would  desert  a brother  or  a friend, 
which  swelled  the  hearts  of  your  fathers  in  the  “olden  time,”  when 
in  defense  of  those  they  loved,  they  sought  the  red  savage  through 
all  the  fastnesses  of  his  native  forest.  It  was  not  such  blood  that 
was  poured  out,  free  as  a gushing  torrent,  upon  the  dark  banks  of 
the  melancholy  Raisin,  when  all  Kentucky  manned  her  warrior 
sires.  They  were  as  bold  and  true  as  ever  fought  beneath  a plume. 
The  Roncesvalles  pass,  when  fell  before  the  opposing  lance  the 
harnessed  chivalry  of  Spain,  looked  not  upon  a braver  or  a better 
band. 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


121 


Kentucky  has  no  law  which  precludes  a man  from  defending 
himself,  his  brother,  or  his  friend.  Better  for  Judge  Wilkinson  had 
he  never  been  born  than  that  he  should  have  failed  in  his  duty  on 
this  occasion.  Had  he  acted  otherwise  than  he  did,  he  would  have 
been  ruined  in  his  own  estimation  and  blasted  in  the  opinions  of 
the  world.  And  young  Murdaugh,  too;  he  has  a mother  who  is 
looking  even  now  from  her  window,  anxiously  watching  for  her 
son’s  return;  but  better,  both  for  her  and  him,  that  he  should  have 
been  borne  a bloody  corpse  to  her  arms  than  that  he  should  have 
carried  to  her,  unavenged,  the  degrading  marks  of  the  accursed 
whip. 

But  there  was  danger,  as  well  as  degradation.  Their  lives  were 
in  imminent  hazard.  Look  at  the  cuts  in  Murdaugh’s  hat  and  upon 
his  head,  the  stab  received  by  the  Judge,  and  the  wounds  inflicted 
upon  the  Doctor.  Besides  the  overwhelming  superiority  in  number 
and  strength,  the  conspirators  had  very  greatly  the  advantage  in 
weapons.  We  have  proven  the  exhibition  and  use  by  them  of 
knives,  dirks,  a sword  cane,  and  a pistol,  without  counting  the 
bludgeons  which,  in  the  hands  of  such  men,  are  weapons  little  less 
deadly  than  the  others. 

Need  I dwell  longer  upon  this  point?  Need  I say  that  the  de- 
fendants are  no  murderers  ? that  they  acted  in  self-defense,  and 
took  life  from  necessity,  not  from  malice  ? 

14.  Scathing  review  of  the  character  and  conduct  of  the 

PRINCIPAL  WITNESSES  FOR  THE  PROSECUTION. 

But  there  is  a murderer;  and,  strange  to  say,  his  name  appears 
upon  the  indictment,  not  as  a criminal,  but  as  a prosecutor.  His 
garments  are  wet  with  the  blood  of  those  upon  whose  deaths  you 
hold  this  solemn  inquest.  Yonder  he  sits,  allaying  for  a moment 
ihe  hunger  of  that  fierce  vulture,  conscience,  by  casting  before  it 
the  food  of  pretended  regret,  and  false  but  apparent  eagerness  for 
justice.  He  hopes  to  appease  the  manes  of  his  slaughtered  victims 
— victims  to  his  falsehood  and  treachery — by  sacrificing  upon  their 
graves  a hecatomb  of  innocent  men.  By  base  misrepresentations 
of  the  conduct  of  the  defendants,  he  induced  his  imprudent  friends 
to  attempt  a vindication  of  his  pretended  wrongs  by  violence  and 
bloodshed.  His  clansmen  gathered  at  his  call,  and  followed  him 
for  vengeance;  but  when  the  fight  began,  and  the  keen  weapons 
clashed  in  the  sharp  conflict — where  was  this  wordy  warrior  ? Aye, 
Where  was  Roderick  then  ? ” No  “blast  upon  his  bugle  horn’' 


122 


SPEECH  OF  SEARGENT  S.  PRENTISS 


encouraged  his  companions  as  they  were  laying  down  their  lives  in 
his  quarrel;  no  gleam  of  his  dagger  indicated  a desire  to  avenge 
their  fall;  with  treacherous  cowardice  he  left  them  to  their  fate,  and 
all  his  vaunted  courage  ended  in  ignominious  flight. 

Sad  and  gloomy  is  the  path  that  lies  before  him.  You  will  in  a 
few  moments  dash,  untasted,  from  his  lips  the  sweet  cup  of  revenge; 
to  quaff  whose  intoxicating  contents  he  has  paid  a price  that  would 
have  purchased  the  goblet  of  the  Egyptian  queen.  I behold  gath- 
ering around  him,  thick  and  fast,  dark  and  corroding  cares.  That 
face  which  looks  so  ruddy,  and  even  now  is  flushed  with  shame  and 
conscious  guilt,  will  from  this  day  grow  pale,  until  the  craven  blood 
shall  refuse  to  visit  his  haggard  cheek.  In  his  broken  and  distorted 
sleep,  his  dreams  will  be  more  fearful  than  those  of  the  “ false,  per- 
jured Clarence;”  and  around  his  waking  pillow,  in  the  deep  hour 
of  night,  will  flit  the  ghosts  of  Rothwell  and  of  Meeks,  shrieking 
their  curses  in  his  shrinking  ear. 

Upon  his  head  rests  not  only  all  the  blood  shed  in  this  unfortu- 
nate strife,  but  also  the  soul-killing  crime  of  perjury;  for,  surely  as 
he  lives,  did  the  words  of  craft  and  falsehood  fall  from  his  lips,  ere 
they  were  hardly  loosened  from  the  Holy  Volume.  But  I dismiss 
him,  and  do  consign  him  to  the  furies — trusting,  in  all  charity,  that 
the  terrible  punishment  he  must  suffer  from  the  scorpion-lash  of  a 
guilty  conscience  will  be  considered  in  his  last  account. 

Johnson  and  Oldham,  too,  are  murderers  at  heart.  But  I shall 
make  to  them  no  appeal.  There  is  no  chord  in  their  bosoms  which 
can  render  back  music  to  the  touch  of  feeling.  They  have  both 
perjured  themselves.  The  former  cut  up  the  truth  as  coolly  as  if 
he  had  been  carving  meat  in  his  own  stall.  The  latter,  on  the  con- 
trary, was  no  longer  the  bold  and  hot-blooded  knight,  but  the 
shrinking,  pale-faced  witness.  Cowering  beneath  your  stern  and 
indignant  gaze,  marked  you  not  how  “ his  coward  lip  did  from  its 
color  fly;”  and  how  his  quailing  eye  sought  from  floor  to  rafter 
protection  from  each  honest  glance. 

It  seems  to  me  that  the  finger  of  Providence  is  visible  in  the 
protection  of  the  defendants.  Had  this  affair  occurred  at  Mr.  Red- 
ding’s Coffee  House,  instead  of  the  Galt  House,  nothing  could  have 
saved  them.  Their  lives  would  have  been  sworn  away,  without  re- 
morse, by  Redding  and  his  gang.  All  that  saved  them  from  sacri- 
fice was  the  accidental  presence  of  gentlemen  whose  testimony  can- 
not be  doubted,  and  who  have  given  an  honest  and  true  account  of 
the  transaction. 


IN  DEFENSE  OF  EDWARD  C.  WILKINSON. 


123 


Gentlemen  of  the  Jury: — I shall  detain  you  no  longer.  It  was, 
in  fact,  a matter  of  supererogation  for  me  to  address  you  at  all,  after 
the  lucid  and  powerful  exposition  of  the  case  which  has  been  given 
by  my  respected  friend,  Col.  Robertson.  It  was  doubly  so  when  it 
is  considered  that  I am  to  be  succeeded  by  a gentleman  (Judge 
Rowan),  who,  better  perhaps  than  any  other  man  living,  can  give 
you,  from  his  profound  learning  and  experience,  a just  interpreta- 
tion of  the  laws  of  your  State;  and  in  his  own  person  a noble  illus- 
tration of  that  proud  and  generous  character  which  is  a part  of 
the  birthright  of  a Kentuckian. 

It  is  true  I had  hoped,  when  the  evidence  was  closed,  that  the 
commonwealth’s  attorney  might  have  found  it  in  accordance  with 
his  duty  and  his  feelings  to  have  entered  at  once  a nolle  prosequi. 
Could  the  genius  of  “ Old  Kentucky  ” have  spoken,  such  would 
have  been  her  mandate.  Blushing  with  shame  at  the  inhospitable 
conduct  of  a portion  of  her  sons,  she  would  have  hastened  to  make 
reparation. 

Gentlemen: — Let  her  sentiments  be  spoken  by  you.  Let  your 
verdict  take  character  from  the  noble  State  which  you  in  part  rep- 
resent. Without  leaving  your  box,  announce  to  the  world  that  here 
the  defense  of  one’s  own  person  is  no  crime,  and  that  the  protec- 
tion of  a brother’s  life  is  the  subject  of  approbation  rather  than  of 
punishment. 

Gentlemen  of  the  Jury: — I return  you  my  most  profound  and 
sincere  thanks  for  the  kindness  with  which  you  have  listened  to  me, 
a stranger,  pleading  the  cause  of  strangers.  Your  generous  and 
indulgent  treatment  I shall  ever  remember  with  the  most  grateful 
emotions.  In  full  confidence  that  you,  by  your  sense  of  humanity 
and  justice,  will  supply  the  many  defects  in  my  feeble  advocacy,  I 
now  resign  into  your  hands  the  fate  of  my  clients.  As  you  shall 
do  unto  them,  so,  under  like  circumstances,  may  it  be  done  unto 
you. 


The  jury  returned  a verdict  of  not  guilty  as  to  all  of  the  defendants. 


IMPORTANCE  OF  THE  DOCTRINE  OF  STARE  DECISIS 


LUTHER  BRADISH. 

The  people,  in  forming  the  organic  law  of  the  government  of  this  State, 
very  wisely  foresaw  that,  in  its  action  and  progress,  questions  of  interpre- 
tation of  the  settlement  of  legal  principles,  and  of  their  application,  would 
frequently  arise  ; and  thence  the  necessity  of  constituting  some  tribunal 
with  general  appellate  and  supervisory  powers,  whose  decisions  should  be 
final  and  conclusively  settle  and  declare  the  law.  This  was  supposed  to 
have  been  accomplished  in  the  organization  of  this  court.  Heretofore  this 
court,  under  the  Constitution,  has  been  looked  to  by  the  people  as  the  trib- 
unal of  the  last  resort  in  the  State  ; and  it  has  hitherto  been  supposed,  that 
when  this  court  had  decided  a case  upon  its  merits,  such  decision  not  only 
determined  the  rights  of  the  parties  litigant  in  that  particular  case,  but 
that  it  also  settled  the  principles  involved  in  it,  as  permanent  rules  of  law, 
universally  applicable  in  all  future  cases  embracing  similar  facts,  and  in- 
volving the  same  or  analogous  principles.  These  decisions  thus  became 
at  once  public  law,  measures  of  private  right,  and  landmarks  of  property. 
They  determined  the  rights  of  persons  and  of  things.  Parties  entered  into 
contracts  with  each  other  with  reference  to  them,  as  to  the  declared  and 
established  law ; law  equally  binding  upon  the  courts  and  the  people.  But 
the  doctrine  recently  put  forth  would  at  once  overturn  this  whole  body  of 
law  founded  upon  the  adjudications  of  this  court,  built  up  as  it  has  been 
by  the  long  continued  and  arduous  labors,  grown  venerable  with  years,  and 
interwoven  as  it  has  become  with  the  interests,  the  habits,  and  the  opinions 
of  the  people.  Under  this  new  doctrine  all  would  again  be  unsettled — 
nothing  established.  Like  the  ever  returning  but  never  ending  labors  of 
the  fabled  Sisyphus,  this  court,  in  disregard  to  the  maxim  of  “ stare  de- 
cisis," w'ould,  in  each  recurring  case,  have  to  enter  upon  its  examination 
and  decision  as  if  all  were  new,  without  any  aid  from  the  experience  of  the 
past,  or  the  benefit  of  any  established  principle  or  settled  law.  Each  case 
with  its  decision  being  thus  limited  as  law  to  itself  alone,  would  in  turn 
pass  away  and  be  forgotten,  leaving  behind  it  no  record  of  principle  estab- 
lished, or  light  to  guide,  or  rule  to  govern  the  future.— [Hanford  v.  Archer,  4 
Hill,  321.] 


SPEECH  OF  DAVID  PAUL  BROWR 


In  Defense  of  Alexander  William  Holmes,  Indicted  for 
Manslaughter  on  the  High  Seas. 

[l  Wallace,  Jr.,  i.] 

AT  A CIRCUIT  COURT  OF  THE  UNITED  STATES,  HELD  AT 
THE  CITY  OF  PHILADELPHIA,  APRIL  TERM,  1842. 


Law  of  the  Ocean. — It  is  a sailor’s  duty  to  protect  persons  in- 
trusted to  his  care,  not  to  sacrifice  them  ; and  this  obligation  rests  upon 
him  at  all  times,  in  every  emergency  of  his  calling.  He  must  expose  him- 
self to  every  danger,  and  protect  the  life  of  the  passenger  to  the  last  ex- 
tremity. 

Where  two  persons  who  owe  no  mutual  duty  to  each  other,  are  by 
accident  placed  in  a situation  where  both  cannot  survive,  neither  is  bound 
to  save  the  other’s  life  by  sacrificing  his  own ; nor  would  either  commit  a 
crime  in  saving  his  own  life,  in  a struggle  for  the  only  means  of  safety. 
In  applying  this  principle,  therefore,  not  only  the  jeopardy,  but  the  rela- 
tions in  which  the  parties  stand,  should  be  considered,  because  the  slayer 
must  be  under  no  obligation  to  make  his  own  safety  secondary  to  the  safety 
of  others.  [United  States  v.  Holmes,  i Wall.  Jr.] 


Analysis  of  Mr.  Brown’s  Speech. 


1.  Heroic  conduct  of  the  defendant. 

2.  Rejected  indictments.— No  quarter  to  be 

given  or  received. 

3.  Circumstances  under  which  alone  a true 

verdict  could  be  reached. 

4.  Realistic  description  of  the  scenes  sur- 

rounding the  alleged  crime. 

5.  Legal  character  of  the  charge. — The  au- 

thorities discussed. 

6.  Propositions  advanced  by  the  prosecution 

answered. 

7.  The  prisoner  bound  to  obey  the  mate’s 

order ; otherwise  all  were  in  a state  of 


nature  when  artificial  distinction 
cease  to  prevail. 

8.  The  defendant  acted  under  the  appre- 

hension of  immediate  peril  and  press- 
ing necessity. 

9.  Vindication  of  the  captain  of  the  lost  vessel. 

10.  Narration  of  the  facts,  and  evidence  in 

the  case. 

11.  The  impulses  which  led  to  the  catas- 

trophe considered. 

12.  Self-preservation  the  first  law  of  nature. 

13.  The  survivors  saved,  solely  through  the 

instrumentality  of  the  defendant. 


The  circumstances  surrounding  the  remarkable  case  of  the  United  States  v. 
Holmes,  present  the  melancholy  romance  and  painful  details  which  invariably 
attach  to  stories  of  marine  disaster.  It  is,  we  believe,  the  only  case  on  record 
in  which  the  rights  of  sailor  and  passenger,  and  their  relative  duties  and  obliga- 
tions in  the  hour  of  peril  and  shipwreck,  have  come  directly  under  judicial 
consideration.  It  would  seem  at  first  blush  as  if  the  old  maxim,  that  self-pres- 
ervation is  the  first  law  of  nature,  a principle  enunciated  by  Lord  Bacon  and 

[125] 


126 


SPEECH  OF  DAVID  PAUL  BROWN 


approved  by  elementary  and  speculative  writers  for  nearly  three  centuries, 
had  been  disregarded  here.  The  familiar  illustration  given  by  the  high  au- 
thority referred  to,  is  that  of  two  persons  being  shipwrecked  and  getting  on 
^he  same  plank,  one  of  whom,  finding  it  not  able  to  save  both,  thrusts  the  other 
from  it,  whereby  he  is  drowned.  And  this  is  declared  to  be  excusable  homicide. 
A careful  examination  of  the  case,  however,  shows  that  Mr.  Justice  Baldwin  has 
adopted  this  rule,  so  far  as  it  applies  to  those  who  are  under  no  legal  obligations 
to  each  other.  But  where  such  obligations  exist,  as  between  sailor  and  passen- 
ger, they  remain  in  force  at  all  times  and  under  all  circumstances.  The  facts  of 
the  case  are  as  follows  ; 

On  the  13th  day  of  March,  1841,  the  good  ship  “William  Brown”  left 
Liverpool,  bound  for  Philadelphia.  She  had  on  board  sixty-five  passengers, 
mostly  Irish  and  Scotch  emigrants,  and  a crew  of  seventeen,  including  officers 
and  seamen,  making  a total  of  eighty-two  souls.  On  Monday  night,  the  19th  of 
April,  while  about  two  hundred  and  fifty  miles  southeast  of  Cape  Race,  off  the 
coast  of  Newfoundland,  the  vessel  struck  an  iceberg  and  began  to  sink.  The 
life-boats  were  launched.  The  first  mate,  eight  seamen  and  thirty-two  pas- 
sengers were  crowded  into  the  long  boat ; the  captain,  second  mate,  six  of 
the  crew  and  one  passenger  got  into  the  jolly  boat.  The  ship  went  down  an 
hour  and  a half  after  she  struck,  carrying  with  her  thirty-one  passengers,  who, 
being  unable  to  get  into  the  boats,  perished.  At  the  last  moment,  just  before 
the  wreck  disappeared,  the  frail  shells,  burdened  to  the  water’s  edge  with  human 
freight,  were  cut  loose  and  set  adrift  upon  the  trackless  waste  of  waters.  The 
boats  remained  together  during  the  night,  and  parted  company  Tuesday  morn- 
ing. Before  separating,  the  mate  in  the  long  boat,  realizing  the  extreme  peril  in 
which  he  was  placed,  tried  to  prevail  on  the  captain  to  take  some  of  the  pas- 
sengers from  the  long  boat  into  the  jolly  boat,  as  the  former  was  unmanageable, 
and  said  that,  unless  he  did  so,  it  would  be  necessary  to  cast  lots  and  throw  some 
overboard.  “ I know  what  you’ll  have  to  do,”  said  the  captain  ; “ don’t  speak 
of  that  now.  Let  it  be  the  last  resort.”  As  a parting  injunction  he  directed  the 
seamen  in  the  long  boat  to  obey  the  orders  of  the  mate  as  they  would  his  own. 

The  long  boat  was  22  feet  long,  6 feet  in  the  beam,  and  from  2|-  to  3 feet 
deep.  She  had  provisions  for  six  or  seven  days,  close  allowance,  consisting  of  75 
pounds  of  bread,  6 gallons  of  water,  8 or  10  pounds  of  meat,  and  a small  bag  of 
oat  meal.  The  boat,  however,  was  leaky ; the  plug  in  the  bottom  was  insufficient 
for  the  purpose,  and  it  became  necessary  to  commence  bailing  the  moment  she 
touched  the  water. 

During  the  forenoon  of  Tuesday  it  began  to  rain,  and  the  rain  continued 
during  the  remainder  of  the  day  and  night.  The  sea  was  quite  calm,  however, 
until  towards  evening,  when  the  wind  freshened  and  it  became  rough,  and  at 
times  washed  over  the  sides  of  the  boat.  Great  masses  of  ice  were  floating 
about,  and  during  the  day  icebergs  had  been  seen.  As  the  shades  of  night  began 
to  thicken,  the  ocean  became  more  and  more  tempestuous,  and  the  peril  of  de- 
struction became  imminent.  The  gunwale  was  within  from  five  to  twelve  inches 
of  the  water.  The  crew  rowed  turn-about,  and  the  passengers  bailed.  About  ten 
o’clock  Tuesday  night,  as  the  sea  grew  heavier  and  the  chances  of  keeping  af.oat 
began  to  diminish,  the  mate,  who  had  been  bailing  steadily,  cried  out : “ This 
work  won’t  do.  Help  me,  God  ! Men,  go  to  work.”  No  attention  was  paid  to 


n:  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES. 


127 


this  order.  Some  of  the  passengers  then  exclaimed : “ The  boat  is  sinking. 
The  plug’s  out.  God  have  mercy  on  our  poor  souls  !’*  In  a few  minutes  after, 
the  mate  again  said  : “ Men,  you  must  go  to  work,  or  we  shall  all  perish.” 

Alexander  William  Holmes,  one  of  the  crew  to  whom  these  orders 
were  addressed,  was  a Finn  by  birth,  and  had  followed  the  sea  from  his  youth. 
He  was  the  last  man  of  the  crew  to  leave  the  sinking  ship,  and  had  become  con- 
spicuous for  courage  and  daring  in  his  endeavors  to  rescue  the  passengers  from 
the  wreck.  The  following  incident  will  illustrate  : A widowed  mother  and  thi-ee 
daughters  got  into  the  long  boat,  but  just  as  it  was  about  being  cut  loose  from 
the  sinking  hulk,  to  escape  going  down  in  the  vortex,  it  was  discovered  that  one 
of  the  daughters,  who  was  sick  and  helpless,  had  been  left  behind.  The  mother, 
half  distracted,  called  the  child’s  name.  “Isabel!  Isabel!  Come!  Come!” 
she  cried,  but  the  poor  creature  was  too  feeble  to  stir.  William  Holmes  heard 
the  mother’s  grief,  and  climbing  up  the  ship’s  side,  at  the  peril  of  his  life,  he 
rescued  the  sick  girl,  and  placing  her  on  his  shoulder,  swung  himself  with  one 
arm  by  the  tackle  into  the  boat.  This  scene  is  vividly  portrayed  by  his  counsel 
in  his  address  to  the  jury.  He  had  also  parted  with  nearly  all  his  clothing  to 
protect  the  shivering  women  in  the  boat.  Nevertheless,  Holmes,  the  hardy  and 
courageous  sailor,  in  response  to  the  command  of  the  mate  to  “go  to  work,” 
assisted  in  throwing  the  passengers  into  the  sea.  No  lots  were  cast.  The  pas- 
sengers were  not  consulted,  the  only  orders  were  not  to  throw  over  any  women, 
and  not  to  separate  man  and  wife.  Holmes  and  his  associates  threw  overboard 
fourteen  males  and  two  women. 

After  three  persons  had  been  thrown  out.  Holmes  came  to  Francis  Asxin, 
who  offered  him  five  sovereigns  to  spare  his  life  till  morning,  saying  : “ If  God 
don’t  send  us  help  by  morning,  we’ll  draw  lots,  and  if  the  lot  falls  on  me.  I’ll  go 
over  like  a man.”  Holmes  answered,  “ I don’t  want  your  money,  Frank,’*  and 
cast  him  into  the  sea.  There  was  a violent  struggle,  but  the  boat  did  not  sink. 
The  two  women  above  referred  to  as  having  been  thrown  over,  were  the  sisters 
of  Askin,  and  there  was  some  doubt  as  to  whether  they  were  thrown  out  or  vol- 
untarily sprang  into  the  water,  choosing  to  share  their  brother’s  fate. 

The  murder  of  Askin  constituted  the  offense  forwhich  Holmes  was  indicted 
and  brought  to  trial  in  the  Circuit  Court  of  the  United  States,  on  the  13th  day  of 
April,  1842. 

The  sequel  of  the  catastrophe  is  soon  told.  Holmes  was  the  ablest  and  most 
experienced  seaman  on  board,  and  the  mate  concluded  to  take  his  judgment  en- 
tirely as  to  what  course  to  pursue.  He  advised  not  to  make  for  Newfoundland, 
that  it  would  never  be  reached,  but  to  steer  south  where  it  was  warmer,  and 
take  the  chances  of  being  picked  up.  He  encouraged  everybody,  and  bade  them 
not  despair.  He  tried  to  make  a sail  with  a quilt,  but  the  wind  was  too 
strong.  On  Wednesday  morning  the  weather  cleared.  Holmes  kept  a sharp  look- 
out, and  long  before  any  one  else  saw  it,  his  trained  and  experienced  eye  descried 
a sail.  He  at  once  raised  a sign  of  distress.  The  approaching  vessel  proved  to 
be  the  ship  Crescent,  which,  seeing  the  signal,  put  about  and  picked  up  the  sur- 
vivors. The  captain  and  second  mate  with  the  persons  in  the  jolly  boat,  after 
beating  about  for  six  days,  were  rescued  by  a French  fishing  lugger. 

Holmes  was  indicted  under  the  act  of  April  30th,  1730,  entitled  “ An  Act  for 
the  punishment  of  certain  crimes  against  the  United  States  (i  Story’s  Laws  U.  S. 


128 


SPEECH  OF  DAVID  PAUL  BLOWN 


p.  83),  the  1 2th  section  of  which  provides,  that  if  any  seaman  shall  commit  man^ 
slaughter  upon  the  high  seas,  he  shall  be  imprisoned  not  exceeding  three  years, 
and  fined  not  exceeding  one  thousand  dollars. 

The  trial  created  great  excitement  and  attracted  universal  attention.  The 
prosecution  was  conducted  by  William  M.  Meredith  (U.  S.  District  Attorney), 
Oliver  Hopkinson,  and  George  M.  Dallas.  For  the  prisoner  appeared  David 
Paul  Brown,  Edward  Armstrong,  and  Isaac  Hazlehurst. 

For  forty  years,  David  Paul  Brown  was  one  of  the  brightest  ornaments  of  his 
profession,  and  his  attainments  and  abilities  have  acquired  for  the  Quaker  lawyer 
enduring  fame.  He  was  a scholarly  and  accomplished  advocate,  and  invariably 
brought  to  his  task  the  wealth  of  his  classical  learning  to  adorn  and  beautify 
his  work.  His  success  at  the  bar  was  instantaneous,  and  it  is  said  that,  during 
the  first  fifteen  years  of  his  professional  life,  his  fees  aggregated  the  handsome 
sum  of  $100,000.  In  his  defense  of  Holmes  he  urged  with  great  power,  that 
when  the  vessel  went  down,  the  voyage,  with  all  its  contemplated  conditions  and 
possibilities,  was  at  an  end,  and  whatever  duties  or  obligations  might  ordinarily 
attach  to  the  mariner,  were  absolved  under  circumstances  of  extreme  peril,  when 
all  men  were  reduced  to  a state  of  nature.  The  Court,  however,  ruled  against 
him  on  these  points,  and  afterwards  denied  a motion  for  a new  trial,  involving 
the  correctness  of  the  position  taken  in  his  charge.  Mr.  Brown  addressed  the 
jury  as  follows  : ^ 

With  Deference  to  the  Court  : — How  wonderful  and  mys- 
terious, gentlemen  of  the  jury,  are  the  vicissitudes  of  human  life. 
How  frail  and  precarious  are  our  best  holds  upon  human  happiness. 
Man,  the  boasted  lord  of  creation,  is  the  sport  of  every  wind  that 
blows,  of  every  wave  that  flows.  He  appears  like  the  grass  of  the 
field,  flourishes  and  is  cut  down,  and  withers  ere  the  setting  sun  ; 
like  the  dews  of  the  morning  he  sparkles  for  a brief  moment  and  is 
exhaled.  There  is  nothing  earthly  certain  but  uncertainty  ; there  is 
nothing  true  but  Heaven. 

What  a salutary  practical  commentary  is  supplied  by  the  present 
intensely  interesting  occasion  upon  the  truth  of  this  melancholy 
doctrine.  On  the  thirteenth  day  of  March,  in  the  last  year,  a 
staunch  and  gallant  ship,  with  a competent  commander  and  a noble 
crew,  with  sixty-five  passengers  on  board,  sailed  from  the  port  of 
Liverpool,  destined  for  that  of  Philadelphia  ; a destination,  alas ! 
which  was  never  accomplished. 

For  more  than  a month,  notwithstanding  she  encountered  storms 
and  tempests,  she  outrode  them  all ; and  like  a thing  of  life  held  on 
her  way  rejoicing.  On  the  19th  of  the  succeeding  month,  she  ar- 
rived in  fairer  climes  and  enjoyed  more  propitious  gales  ; but  even 

' For  this  full  report  of  Mr.  Brown’s  speech,  we  are  indebted  to  Mr,  Robert 
Eden  Brown,  who  has  collected  and  edited  a volume  of  his  father’s  speeches. 
King  & Baird,  Philadelphia,  1873. 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  129 

then,  when  every  heart  throbbed  with  the  anticipated  joy  of  a 
speedy  arrival,  the  angel  of  destruction  spread  his  broad  black 
wings  above  her,  and  while  traversing  the  ocean  with  all  sails  set, 
at  the  rate  of  ten  knots  an  hour,  she  came  into  collision  with  an 
island  of  ice,  and  in  a moment  her  pride  was  prostrate,  and  the 
doomed  ship  was  reduced  to  an  actually  sinking  condition,  afford- 
ing scarcely  time  for  the  unhappy  inmates,  in  the  moment  of  their 
extremest  need,  to  cry  God  bless  us.  The  ocean,  her  favored  ele- 
ment, of  which  for  years  she  had  been  the  pride,  became  her  se- 
pulchre ; and  the  winds  that  had  borne  her  upon  many  a prosper^ 
ous  voyage,  sung  her  last  sad,  only  requiem.  Here  is  a scene  strik- 
ingly presented,  in  which  the  theories  of  philosophy  are  reduced  at 
once  to  a frightful  reality. 

I.  Heroic  conduct  of  the  defendant. 

But  there  is  still  another  picture  to  which  I would  invite,  and 
upon  which  I would  fasten  your  attention.  On  that  dreadful  night, 
the  crew  and  half  the  passengers  having  taken  to  the  boats,  the 
agonizing  voice  of  a mother  is  heard  even  beyond  the  tumult  and 
the  clamor,  calling  for  the  preservation  of  her  daughter,  who  in  the 
consternation  of  the  moment  had  been  forgotten,  and  remained  on 
board  the  fated  ship.  In  an  instant,  you  may  see  a gallant,  athletic 
and  powerful  sailor,  passing  hand  over  hand,  by  dint  of  a slender 
rope,  until  he  regains  the  vessel.  And  you  may  further  behold  him 
upon  the  quarter  deck,  in  the  depth  of  the  night,  surrounded  by  the 
wild  and  wasteful  ocean,  with  one  arm  entwined  around  a sickly  and 
half  naked  girl,  while,  with  the  other,  he  bravely  swings  himself  and 
his  almost  lifeless  burden,  by  means  of  the  “boat  tackle  falls,’* 
from  the  stern  of  the  sinking  ship  into  the  boat  below,  and  at  once 
restores  the  child  to  the  open  arms  and  yearning  heart  of  the 
mother.  Yet  to-day,  I say  it  to  the  disgrace  of  the  law,  after 
months  of  solitary  imprisonment,  you  here  see  that  self-same  heroic 
sailor  arraigned  upon  the  odious  charge  of  having  voluntarily  and 
wantonly  deprived  a fellow-creature  of  his  life  ; and  that,  gentle- 
men of  the  jury,  is  the  charge  that  I am  to  argue  and  you  are  to 
determine.  I say  this  is  what  you  are  to  determine. 

2.  Rejected  indictments. — No  quarter  to  be  given  or 

RECEIVED. 

It  may  not  be  inappropriate,  however,  though  certainly  not  vital 
to  this  cause,  that  I should  ask  your  attention,  in  passing  to  the  real 

9 


130 


SPEECH  OF  DAVID  PAUL  BROWN 


subject  in  controversy,  to  two  other  indictments  which  stain  the 
records  of  this  court,  referring  to  portions  of  - the  same  transaction: 
the  first  charging  the  defendant  with  murder,  which  the  grand  jury 
promptly  ignoramused  ; and  the  second,  in  the  impotency  of  disap- 
pointed revenge,  accusing  him  of  larceny  in  having  stolen  a quilt  of 
the  alleged  value  of  three  dollars,  which  charge  shared  the  same 
fate.  You  can  form  some  idea  of  the  dignity  of  the  United  States 
and  its  value,  while  observing  how  it  has  been  cheapened  by  itself. 
This  very  quilt,  permit  me  to  remind  you,  is  that  which  was  con- 
verted by  Holmes  into  a sail  for  the  boat,  in  a moment  of  the  ex- 
tremest  peril,  in  order  that  he  might  save  the  lives  of  those  very 
beings  who  gratefully  appeared  before  the  grand  jury  upon  the  first 
opportunity,  in  order  to  convict  their  benefactor  of  these  imputed 
crimes.  I shall  speak  of  this  hereafter  ; for  the  present  I merely 
advert  to  it,  and  pass  at  once  to  more  important  matters. 

In  approaching  the  consideration  of  this  case,  which  I do  with 
pride  and  pleasure  and  confidence,  I cannot  but  express  my  regret, 
to  adopt  a military  phrase,  that  I am  called  into  conflict  not  only 
with  the  regular  troops  of  the  United  States,  but  with  her  recently 
enlisted  volunteers.  I am  sorry  that  my  gallant  friend  ^ who  led  on 
the  attack  so  boldly  yesterday,  and  who  is  a legitimate  leader  every- 
where, should  so  far  have  returned  to  his  first  love  as  to  desert  the 
white  banner  of  innocence  (under  which  he  has  lately  so  success- 
fully fought)  to  engage  once  more  beneath  the  bloody  flag  of  such 
a prosecution  as  this.  Since  it  is  so,  however,  let  him  nail  that  flag 
to  the  mast.  We  should  be  happy  to  abide  by  every  principle  of 
civilized  warfare  ; but  in  a mortal  controversy,  in  a death  struggle 
like  this,  we  shall  neither  ask  nor  will  we  receive  any  quarter. 

3.  Circumstances  under  which  alone  a true  verdict 

COULD  BE  REACHED. 

This  case,  in  order  to  embrace  all  its  horrible  relations,  ought 
to  be  decided  in  a long  boat,  hundreds  of  leagues  from  the  shore, 
loaded  to  the  very  gunwale  with  forty-two  half  naked  victims;  with 
provisions  only  sufficient  to  prolong  the  agonies  of  famine  and  of 
thirst ; with  all  the  elements  combined  against  her  ; leaking  from 
below,  filling  also  from  above  ; surrounded  by  ice,  unmanageable 
from  her  condition,  and  subject  to  destruction  from  the  least 
change  of  the  wind  and  the  waves — the  most  variable  and  most 
terrible  of  all  the  elements.  Decided  at  such  a tribunal,  nature — ■ 


* Mr.  Dallas. 


IN  DEFENSE  OF  ALEXANDER . WILLIAM  HOLMES.  131 


intuition — would  at  once  pronounce  a verdict,  not  only  of  acquittal, 
but  of  commendation.  The  prisoner  might,  it  is  true,  obtain  no 
outward  atonement  for  nine  months  of  suffering  and  of  obloquy ; 
but  he  would  at  least  enjoy  the  satisfaction  always  to  be  derived 
from  a consciousness  of  rectitude,  in  which  the  better  part  of  the 
world  sympathize,  and  in  which  it  confides. 

Are  the  United  States  to  come  here  now,  a year  after  the  events, 
when  it  is  impossible  to  estimate  the  elements  which  combined  to 
make  the  risk,  or  to  say  to  what  extent  the  jeopardy  was  imminent; 
are  they,  with  square,  rule  and  compass,  deliberately  to  measure 
this  boat,  in  this  room  ; to  weigh  these  passengers  ; call  in  philos- 
ophers ; discuss  specific  gravities  ; calculate  by  the  tables  of  a life 
insurance  company  the  chances  of  life  ; and  because  they,  the 
judges,  find  that,  by  their  calculation,  this  unfortunate  boat’s  crew 
might  have  had  the  thousandth  part  of  one  poor  chance  to  escape, 
to  condemn  this  prisoner  to  chains  and  a dungeon  for  what  he  did 
in  the  terror  and  darkness  of  that  dark  and  terrible  night  ? Such  a 
mode  of  testing  men’s  acts  and  motives  is  monstrous  ! 

Alas  ! how  different  is  the  scene  now  exhibited  ? You  sit  here, 
the  sworn  twelve,  the  center  of  that  society  which  you  represent, 
surrounded  by  the  sanctions  of  those  laws  which  for  a time  you  ad- 
minister ; reposing  amidst  the  comforts  and  delights  of  sacred 
homes  ; directed  and  instructed  by  a judge  who,  being  full  of  light 
himself,  freely  imparts  it  to  all  he  approaches ; to  decide  upon  the 
impulses  and  motives  of  the  prisoner  at  the  bar,  launched  upon  the 
bosom  of  the  perilous  ocean  ; surrounded  by  a thousand  deaths  in 
their  most  hideous  forms,  with  but  one  plank  between  him  and  de- 
struction. What  sympathies  can  be  inspired  by  relative  positions 
so  remote,  so  opposite  as  these. 

4.  Realistic  description  of  the  scenes  surrounding  the 

ALLEGED  CRIME. 

Translate  yourselves  if  you  can,  by  the  power  of  imagination, 
to  those  scenes,  those  awful  scenes  to  which  this  proceeding  refers. 
Fancy  yourselves  in  a frail  barque,  encompassed  by  towers  of  ice 
Olympus  high,  and  still  magnified  by  the  fear  natural  to  man  ; ex- 
posed to  bleak  and  pitiless  winds,  surrounded  by  forty  wretches  as 
miserable  as  yourself,  deepening  your  own  afflictions  by  the  con- 
tagion of  grief  ; removed  a hundred  leagues  from  land,  and  still 
further  removed  by  a destitution  of  those  means  by  which  alone  it 
could  possibly  be  reached. 


132 


SPEECH  OF  DAVID  PAUL  BROWN' 


Nay,  further,  superadd  to  these  horrors  the  apprehension  of 
famine,  of  storm,  bearing  assured  destruction  on  its  wing;  and 
connect  all  these  with  the  scenes  and  terrors  of  the  night  just  past, 
enough  to  appal  the  stoutest  heart  and  overthrow  the  firmest  brain, 
and  then  tell  me,  not  w^hat  the  defendant  should  have  done,  but 
what  the  most  severe  and  rigid  would  have  done,  in  trials  and  perils 
and  calamities  like  these.  It  is  easy  to  scorn  the  tempest  while 
sporting  with  the  zephyr  ; to  laugh  at  the  ocean  while  secure  from 
its  ravages  and  horrors  ; to  expatiate  upon  the  harmlessness  of  ice 
while  indulging  in  it,  perhaps  as  a luxury  ; or  to  underrate  famine 
in  the  abundance  of  your  supplies  ; but  may  that  Power  that  rides 
on  the  w'hirlwind  and  directs  the  storm,”  protect  you  against  the 
sad  reality  of  those  afflictions  which  in  their  mere  theory  are  often 
so  readily  overcome  by  your  self-secure,  cold-blooded  and  reckless 
philosophy.  Philosophy  readily  triumphs  over  past  and  future  and 
remote  ills  ; but  present  and  immediate  ills  grapple  closely  with  the 
heart,  and  triumph  over  philosophy. 

5.  Legal  character  of  the  charge. — The  authorities 

DISCUSSED. 

Let  us  now  cOme  to  those  facts  which  distance  and  defy  all  the 
powers  of  fancy.  Before  doing  this,  however,  you  will  pardon  me 
in  examining  the  legal  character  of  his  charge  : First,  as  relates  to 
the  act  of  Congress  ; secondly,  as  regards  the  inherent  defects  of 
the  indictment ; thirdly,  as  respects  its  inconsistency  with  the  evi- 
dence in  the  cause.  I have  for  the  present  but  a word  to  say  upon 
each  of  these  subjects,  rather  to  show  that  they  have  not  been  over- 
looked, than  with  any  intention  elaborately  to  discuss  them. 

The  act  of  Congress  leaves  manslaughter  where  it  was  at  com- 
mon law,  so  far  as  regards  its  definition  ; it  only  modifies  its  punish- 
ment. The  punishment  is  not  more  than  three  years,  with  a penalty 
not  exceeding  one  thousand  dollars.  You  have  been  truly  told  by 
the  opposite  counsel  that  the  court  may  reduce  their  sentence  to  a 
merely  nominal  punishment.  That  is  the  business  of  the  court, 
however,  and  after  your  verdict  is  found,  your  influence  is  extinct. 
Whether  the  punishment  is  to  be  an  hour  or  a year,  it  is  an  in- 
famous punishment ; and  you  should  be  equally  cautious  in  resting 
your  verdict  upon  unquestionable  and  unsatisfactory  proof.  I 
marvel,  indeed,  that  my  learned  friend,  while  haranguing  you  upon 
the  enormity  of  this  offense,  should  attempt  soothing  you  into  a ver- 
dict by  the  suggestion  that  it  would  probably  be  attended  with  no  evil 


IN’  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  133 


to  the  defendant.  Allow  me  to  deprecate  this  questionable  mercy. 
It  is  calculated,  if  not  designed,  to  seduce  you  from  allegiance  to 
your  duties.  If  the  defendant  be  guilty,  he  should  meet  the  rigor 
of  the  law  ; if  innocent,  his  rights  should  not  be  compromised  by 
the  imaginary  insignificance  of  his  anticipated  punishment.  I make 
no  claims  upon  your  charity  ; my  appeals  are  to  your  justice. 

Now,  as  to  the  internal  defects  of  the  indictment.  The  indict- 
ment contains  four  counts  for  manslaughter.  That  is,  for  unlaw- 
fully, but  without  malice,  depriving  a fellow-creature  of  his  life. 
Malice  would  elevate  what  would  otherwise  be  manslaughter,  into 
murder. 

The  first  count  charges  the  homicide  on  board  of  the  ship  Wil- 
liam Brown,  belonging  to  Stephen  Baldwin.  The  second — on  board 
of  a vessel,  name  unknown,  belonging  to  Stephen  Baldwin.  The 
third  and  fourth  are  the  same,  with  the  exception  of  Thomas  Vogel’s 
name  being  substituted  for  that  of  Stephen  Baldwin’s. 

Now,  these  charges  are  incompatible  with  each  other,  and  are 
calculated  to  bewilder  the  prisoner  in  his  defense.  They  cannot 
all  be  true,  and  as  there  has  been  no  election  on  the  part  of  the 
prosecution,  a verdict  upon  all  will  involve  an  inconsistency  obvi- 
ously illegal,  if  not  utterly  fatal.  The  doctrine  of  Milton,  as  ap- 
plied to  angelic  existences,  that,  vital  in  every  part,  they  cannot, 
but  “ by  annihilation,  die,”  is  not  true  in  its  application  to  indict- 
ments. They  are  mortal  in  every  part,  and  the  destruction  of  one 
part  of  a count  is  the  destruction  of  all  parts  of  the  same  count. 
One  count,  it  is  true,  does  not  destroy  another  when  they  are  at  all 
compatible  with  each  other,  and  when  an  election  has  been  made  ; 
but  when  the  charges  contained  in  an  indictment  are,  as  in  this 
case,  totally  inconsistent,  if  the  jury  should  find  a verdict  of  guilty 
upon  the  indictment  generally,  it  will  be  subject  to  a motion  in  ar- 
rest of  judgment,  and  it  can  never  stand. 

Lastly,  I say,  if  the  indictment  were  unquestionable  in  itself,  it 
is  not  supported  by  the  proof.  I say  nothing  in  regard  to  the  error 
in  the  time  stated,  which,  in  some  cases,  might  be  fatal,  but  probably 
not  in  this.  The  ship,  as  appears  by  the  evidence,  neither  belonged 
to  Baldwin  nor  Vogel,  but  to  McCrea,  who  is  not  even  referred  to. 
Baldwin,  however,  it  is  said,  held  a claim  to  her,  a mortgage  upon 
her  as  collateral  security.  That  does  not  improve  the  case  of  the 
prosecution.  Special  property  may  be  sufficient,  but  it  must  be 
special  property  accompanied  by  possession,  or  at  all  events  pos- 
session itself,  actual  or  constructive.  Suppose  a person  were  in' 


134 


SPEECH  OF  DAVID  PAUL  BROWJj 


dieted  for  committing  a burglary  upon  the  house  of  A.  B.,  and 
upon  the  trial  it  appeared  that  the  house  was  the  dwelling  of  E.  F., 
and  that  the  person  whose  name  was  introduced  into  the  indictment 
was  merely  the  mortgagee,  certainly  the  charge  could  not  be  sus- 
tained for  a moment.  I merely,  for  the  present,  hint  at  rather 
than  press  these  objections.  I shall,  if  necessary — which  it  prob- 
ably will  not  be — have  the  benefit  of  them  hereafter. 

We  pass  now  to  the  law  more  immediately  connected  with  the 
facts  of  this  case.  Russell,  Paley,  Rutherford,  Blackstone,  and, 
above  all.  Lord  Bacon,  are  the  authorities  upon  which  the  entire 
law  of  the  case  rests. 

As  to  Puffendorf,  Grotius,  Heineccius,  and  others  who  have 
been  quoted,  with  all  their  lofty  pretensions,  they  do  not  contain  as 
much  wisdom  or  light  as  may  be  found  upon  each  and  every  page 
of  the  wisest  and  brightest  of  mankind.”  So  far  as  regards  the 
present  subject,  they  exhibit  more  pedantry  and  casuistry  than 
either  learning  or  common  sense. 

We  contend,  that  what  is  honestly  and  reasonably  believed  to 
be  certain  death,  will  justify  self-defense  in  the  degree  requisite  for 
excuse.  According  to  Dr.  Rutherford,^  “ this  law  ” — i.  e.,  the  law 
of  nature — “ cannot  be  supposed  to  oblige  a man  to  expose  his  life 
to  such  dangers  as  may  be  guarded  against,  and  to  wait  till  the 
danger  is  just  coming  upon  him,  before  it  allows  him  to  secure  him- 
self.” In  other  words,  he  need  not  wait  till  the  certainty  of  the 
danger  has  been  proved,  past  doubt,  by  its  result.  Yet  this  is  the 
doctrine  of  the  prosecution.  They  ask  us  to  wait  till  the  boat  has 
sunk  ; we  may  then  make  an  effort  to  prevent  her  from  sinking. 
They  tell  us  to  wait  till  all  are  drowned  ; we  may  then  make  en- 
deavors to  save  a part.  They  command  us  to  stand  still  till  we  all 
are  lost,  past  possibility  of  redemption,  and  then  we  may  rescue  as 
many  as  can  be  saved  ! “ Where  the  danger  is  instantaneous,  the 

mind  is  too  much  disturbed,”  says  Rutherford,  in  a passage  hereto- 
fore cited,  “ to  deliberate  upon  the  method  of  providing  for  one’s 
own  safety,  with  the  least  hurt  to  an  aggressor.”  The  same  author 
then  proceeds  : “ I see  not,  therefore,  any  want  of  benevolence 
which  can  be  reasonably  charged  upon  a man  in  these  circum- 
stances, if  he  takes  the  most  obvious  way  of  preserving  himself, 
though,  perhaps,  some  other  method  might  have  been  found,  which 
would  have  preserved  him  as  effectually,  and  have  produced  less 
hurt  to  the  aggressor,  if  he  had  been  calm  enough,  and  had  been 
’ Inst,  of  Nat.  Law,  book  I,  chap.  i6. 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  135 


allowed  time  enough  to  deliberate  about  it.”  * Nor  is  this  the  lan- 
guage of  approved  text-writers  alone.  The  doctrine  has  the 
solemnity  of  judicial  establishment.  In  Grainger  v.  The  State,’  the 
Supreme  Court  of  Tennessee  deliberately  adjudge,  that  “if  a man, 
though  in  no  great  danger  of  serious  bodily  harm,  through  fear, 
alarm,  or  cowardice,  kill  another,  under  the  impression  that  great 
bodily  injury  is  about  to  be  inflicted  on  him,  it  is  neither  man- 
slaughter nor  murder,  but  self-defense.”  “ It  is  a different  thing,” 
say  the  Supreme  Court  of  the  United  States,  in  the  Mariana  Flora, 
“to  sit  in  judgment  upon  the  case,  after  full  legal  investigations, 
aided  by  the  regular  evidence  of  all  parties,  and  to  draw  conclu- 
sions at  sea,  with  very  imperfect  means  of  ascertaining  facts  and 
principles,  which  ought  to  direct  the  judgment.”  ^ The  decision  in 
the  case  just  cited  carried  out  this  principle  into  practice,  as  the 
case  of  Le  Louis,  decided  by  Sir  William  Scott,  had  done  before.* 

The  counsel  cited  Lord  Bacon,  likewise.®  But  the  prospect  of 
sinking  was  not  imaginary  ; it  was  well  founded.  It  is  not  to  be 
supposed  that  Holmes,  who,  from  infancy,  had  been  a child  of  the 
ocean,  was  causelessly  alarmed  ; and  there  being  no  pretense  of  ani- 
mosity, but  the  contrary,  we  must  infer  that  the  peril  was  extreme. 

I have  thus  given  you  the  law.  There  is  but  little  difficulty 
between  us  in  regard  to  it.  The  labor  is  in  the  application  of  the 
law. 

6.  Propositions  advanced  by  the  prosecution  answered. 

I maintain  that  a well-founded  apprehension  of  peril  to  life 
justifies  self-defense,  to  the  extent  of  destroying  the  adversary. 
The  opposite  counsel  maintain  that  the  peril  must  be  actually  in- 
evitable. This  I deny,  and  say  that  it  is  enough  if  it  be  honestly 
and  reasonably  supposed  to  be  so.  An  mevitable  danger  I don’t 
understand. 

They  maintain  that  the  peril  must  be  not  only  inevitable,  but 
immediate.  I answer,  it  need  be  neither  ; but  it  must  reasonably 
be  supposed  to  be  both. 

Suppose,  upon  an  indictment  for  manslaughter,  a plank  be 

^ Rutherford,  Inst,  of  Nat.  Law,  book  I,  chap.  i6,  § 5. 

■ ^ 5th  Yerger’s  Rep.  p.  459. 

^ nth  Wheaton’s  Rep.  p.  51. 

^ 2d  Dodson’s  Admiralty  Rep.  p.  264. 

5 Works  by  Montague,  vol.  13th,  p.  160;  London,  1831  ; and  4th  Black- 
stone’s  Com.  p.  160. 


136 


SPEECH  OF  DAVID  PAUL  BROWN 


measured  in  court,  with  square,  rule  and  compass,  and  it  be  found 
that  it  would  have  sustained  two  persons  ; still,  is  he,  who  in  his 
terror  supposes  it  would  not,  to  be  liable  for  conviction  ? Certain- 
ly not. 

The  prosecution  contends  that  if  there  be  a doubt  as  to  the  in- 
evitable peril,  the  defendant  is  to  be  convicted.  I say  it  is  pre- 
sumed to  have  been  considered  inevitable,  from  the  fact  itself ; 
there  being  no  pretense  of  animosity,  but  clear  evidence  of  the 
greatest  kindness  and  sympathy. 

They  say,  that  if  the  danger  were  inevitable,  still  the  defendant 
had  no  right  to  make  selection.  To  this  I reply,  that  this  argu- 
ment involves  the  necessity  of  throwing  a//  overboard.  The  selec- 
tion would  have  been  just  the  same  if  they  had  destroyed  those 
who  are  living  now,  and  permitted  the  others  to  remain. 

But,  say  they,  lots  might  have  been  cast.  If  the  peril  were  in- 
evitable and  immediate,  that  could  not  have  been  done.  We  hear 
for  the  first  time  of  casting  lots  in  a sinking  boat,  where  the  ques- 
tion is  whether  any  can  be  saved,  rather  than  who  shall  be  lost. 
Lots  in  cases  of  famine,  where  means  of  subsistence  are  wanting 
for  the  number  of  the  crew,  are  matters  which,  horrible  as  they 
are,  are  comparatively  familiar  to  us.  But  to  cast  lots  to  see  who 
shall  go  first,  when  all  are  going,  is  reserved  for  the  ingenuity  of 
the  counsel,  who  constructs  a raft  on  board  of  ship,  in  the  depth  of 
the  night,  with  the  prospect  of  her  going  down  before  he  drives  the 
first  nail,  or  plies  the  first  rope. 

The  danger  was  instantaneous ; “ a case,”  says  Rutherford/ 
“where  the  mind  is  too  much  disturbed  to  deliberate  and  where, 
if  it  were  “ more  calm,”  there  is  no  time  for  deliberation.  The 
sailors  adopted  the  only  principle  of  selection  which  was  possible 
in  an  emergency  like  theirs  ; a principle  more  humane  than  lots. 
Man  and  wife  were  not  torn  asunder : and  the  women  were  all  pre- 
served. Lots  would  have  rendered  impossible  this  clear  dictate  of 
humanity. 

7.  The  prisoner  bound  to  obey  the  mate’s  order;  other- 
wise ALL  were  in  a state  OF  NATURE  WHEN  ARTI- 
FICIAL DISTINCTIONS  CEASE  TO  PREVAIL. 

But,  again,  the  crew  either  were  in  their  ordinary  and  original 
state  of  subordination  to  their  officers,  or  they  were  in  a state 


* Inst,  of  Nat.  Law,  book  I,  chap.  16,  § 5. 


IN’  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES. 


137 


nature.  If  in  the  former  state,  they  were  excusable  in  law  for  hav- 
ing obeyed  the  order  of  the  mate  ; an  order  twice  imperatively 
given.  Independent  of  the  mate’s  general  authority  in  the  captain’s 
absence,  the  captain  had  pointedly  directed  the  crew  to  obey  all 
the  mate’s  orders  as  they  would  his  (the  captain’s),  and  the  crew 
had  promised  to  do  so. 

It  imports  not  to  declare  that  the  crew  is  not  bound  to  obey  an 
unlawful  order  ; for  to  say  that  this  order  was  unlawful,  is  to  pos- 
tulate what  remains  to  be  proved.  Who  is  to  judge  of  the  unlaw- 
fulness ? The  circumstances  were  peculiar.  The  occasion  was 
emergent,  without  precedent  or  parallel.  The  lawfulness  of  the 
order  is  the  very  question  we  are  disputing,  a question  about  which 
the  whole  community  has  been  agitated,  and  is  still  divided  ; the 
discussion  of  which  crowds  this  room  with  auditors  past  former 
example  ; a question  which  this  court,  with  all  its  resources,  is  now 
engaged  in  considering,  as  such  a question  demands  to  be  consid- 
ered, most  deliberately,  most  anxiously,  most  cautiously.  It  is  no 
part  of  a sailor’s  duty  to  moralize  and  to  speculate,  in  such  a 
moment  as  this  was,  upon  the  orders  of  his  superior  officers.  The 
commander  of  a ship,  like  the  commander  of  an  army,  “gives 
desperate  commands.”  He  requires  instantaneous  obedience.  The 
sailor,  like  the  soldier,  obeys  by  instinct.  In  the  memorable,  im- 
mortal words  of  Carnot,  when  he  surrendered  Antwerp,  in  obedi- 
ence to  a command  which  his  pride,  his  patriotism,  and  his  views 
of  policy  all  combined  to  oppose  : “ The  armed  force  is  essentially 
obedient ; it  acts,  but  never  deliberates.”  The  greatest  man  of 
the  French  Revolution  did  here  but  define,  with  the  precision  of 
the  algebraist,  what  he  conceived  with  the  comprehension  of  a 
statesman  ; and  his  answer  was  justification  with  every  soldier  in 
Europe  ! How  far  the  principle  was  felt  by  this  crew,  let  us  wit- 
ness the  case  of  this  very  mate,  and  of  some  of  these  very  sailors, 
who,  by  the  captain’s  order,  left  the  jolly  boat,  which  had  ten  per- 
sons, for  the  long  boat,  with  more  than  four  times  that  number. 
They  all  regarded  this  as  going  into  the  jaws  of  death  ; yet,  not  a 
murmur  ! It  is  a well-known  fact,  that  in  no  marine  on  the  ocean 
is  obedience  to  orders  so  habitual  and  so  implicit  as  in  our  own. 
The  prisoner  had  been  always  distinguished  by  obedience.  Whether 
the  mate,  if  on  trial  here,  would  be  found  innocent,  is  a question 
which  we  need  not  decide.  That  question  is  a different  one  from 
the  guilt  or  innocence  of  the  prisoner,  and  one  more  difficult. 

But  if  the  whole  company  were  reduced  to  a state  of  nature. 


138 


SPEECH  OF  DAVID  PAUL  BROWI^ 


then  the  sailors  were  bound  to  no  duty  not  mutual  to  the  pas- 
sengers. The  contract  of  the  shipping  articles  had  become  dis- 
solved by  an  unforeseen  and  overwhelming  necessity.  The  sailor 
was  no  longer  a sailor,  but  a drowning  man.  Having  fairly  dono 
his  duty  to  the  last  extremity,  he  was  not  to  lose  the  rights  of  a 
human  being,  because  he  wore  a roundabout  instead  of  a frock- 
coat.  We  do  not  seek  authorities  for  such  doctrine.  The  instinct 
of  these  men’s  hearts  is  our  authority  ; the  best  authority.  Who- 
ever opposes  it  must  be  wrong,  for  he  opposes  human  nature.  Ail 
the  contemplated  conditions,  all  the  contemplated  possibilities  of 
the  voyage  were  ended.  The  parties — sailors  and  passengers — were 
in  a new  state.  All  persons  on  board  the  vessel  became  equal  ; ali 
became  their  own  law-givers ; for  artificial  distinctions  cease  to 
prevail  when  we  are  reduced  to  the  equality  of  nature.  The  law 
which  did  prevail  on  that  awful  night,  having  been  the  law  of  neces- 
sity and  the  law  of  nature,  too,  it  is  the  law  which  will  be  upheld  by 
this  court  to  the  liberation  of  this  prisonero 

Now  I have  shown,  if  these  views  be  sound,  that  apart  from  the 
preservation  of  the  rest  of  the  passengers,  and  themselves,  these 
men  could  have  had  no  inducement  to  take  life.  That  the 
magnanimity,  gallantry  and  tenderness  of  Holmes  utterly  forbid 
the  idea.  That,  therefore,  it  is  honestly  and  .fairly  to  be  inferred, 
that  they  apprehended  immediate  peril,  and  were  sustained  by  the 
laws  of  nature  in  acting  accordingly. 

8.  The  defendant  acted  under  the  apprehension  of  imme- 
diate PERIL  AND  PRESSING  NECESSITY. 

As  to  the  circumstance  of  Frank  Askins  offering  five  guineas  to 
preserve  his  life  till  morning,  and  its  being  refused  ; that  so  far 
from  making  against  us,  makes  for  us.  If  they  had  complied  with 
that  request,  they  must  either  have  sold  the  lives  of  all  on  board  for 
five  sovereigns,  or  have  offered  conclusive  evidence  that  they  did 
not  conceive  the  peril  to  be  immediate.  If  they  had  even  received 
the  money,  and  afterwards  deprived  him  of  life,  the  money  itself 
would  have  been  an  indication,  either  of  a corrupt  motive,  or  a re- 
liance on  their  own  security,  incompatible  with  the  doctrine  for 
which  I contend.  It  was  a terrific  deed,  to  be  sure,  consider  it 
which  way  you  will  ; and  the  very  horror  of  the  deed  constitutes 
part  of  its  defense  : as  it  is  fairly  to  be  presumed  it  would  not  have 
been  resorted  to,  except  in  a case  of  a horrible  necessity. 

The  fate  of  the  two  sisters  is  spoken  of  with  peculiar  pathos. 


DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  139 


I maintain  their  lives  were  never  sacrificed  by  the  crew,  (ist.)  Be- 
cause there  is  no  positive  proof  to  that  effect — mere  loose  sugges- 
tions or  inferences.  (2d.)  Because  there  was  not  a hand  laid  upon 
any  other  woman  in  the  boat.  (3d.)  Because  never  mentioned  by 
witnesses  upon  previous  examinations.  (4th.)  Because  the  conduct 
of  the  sisters  shows  that  it  was  an  act  of  self-devotion,  which  is  al- 
most admitted,  indeed  ; and  which  adds  another  bright  page  to  the 
records  of  time,  exhibiting  the  fidelity,  affection  and  devotion  of  a 
woman’s  heart. 

Considering  it  in  this  point  of  view,  its  glory  is  almost  equal  to 
its  horrors,  neither  of  which  is  attributable  to  the  defendant.  But 
it  is  said,  that  if  the  passengers  had  been  allowed  to  live  until  the 
next  morning,  a ship  was  at  hand. 

First,  I answer,  that  the  probability  was  that  they  could  not 
have  survived  the  night ; and,  secondly,  that,  without  prescience 
they  could  not  know  of  the  ship  being  at  hand. 

Now  let  us  look  to  the  next  morning.  The  boat  is  still  filled 
with  water,  the  peril  is  not  abated,  and  two  more  half  frozen 
wretches  are  removed ; some  few  hours  after  this,  the  vessel  is  dis- 
cerned, and  Holmes,  and  the  passengers,  through  the  instrumen- 
tality of  Holmes,  are  saved. 

As  to  the  notion  that  there  is  any  distinction  between  sailors  and 
other  men,  in  their  natural  rights  of  self-defense,  it  is  not  to  be 
tolerated.  If  the  peril  were  not  imminent,  no  man  has  a right  to 
destroy  the  life  of  another  for  the  preservation  of  his  own.  If  it 
were  imminent  and  apparently  inevitable,  any  man,  without  regard 
to  condition,  vocation  or  degree,  had  that  right.  A state  of  nature 
implies  the  absence  of  all  but  natural  law  ; and  natural  law  is  not 
to  be  affected  by  artificial  distinctions.  A sailor  is  upon  equality 
with  passengers  ; nay,  he  is  upon  an  equality  with  his  captain  in 
emergencies  like  this.  With  these  views  of  the  law  let  us  turn  to 
the  facts. 

9.  Vindication  of  the  captain  of  the  lost  vessel. 

On  the  13th  of  March,  1841,  as  has  been  said,  the  ship  sailed 
from  Liverpool  to  Philadelphia  ; she  came  in  contact  with  the  ice 
on  the  19th  of  April,  and  in  one  hour  and  less  was  reduced  to  a 
sinking  condition. 

The  captain  having  unavailingly  attempted  the  pumps,  ordered 
the  boats  to  be  launched  from  the  ship.  Thirty-three  passengers 
and  nine  sailors  entered  the  long  boat,  and  the  captain,  seven  sail* 


140 


SPEECH  OF  DAVID  PAUL  BROWN 


ors  and  one  passenger  entered  the  jolly  boat.  The  boats  were 
moored  at  the  stern  of  the  ship,  by  dint  of  a ten  fathom  rope,  at- 
tached to  the  vessel.  And  in  a few  minutes  the  ship  sunk  forever  ; 
the  rope  being  severed  at  that  very  moment  by  Holmes,  who  was 
posted  for  that  purpose. 

The  counsel,  at  this  point  of  the  case,  indulged  in  a severe  and 
unmeasured  attack  upon  Captain  Harris,  for  having  deserted  the 
vessel  ; maintaining  that  he  was  bound  to  have  sunk  with  her,  that 
he  has  disgraced  the  American  name  by  not  having  done  so,  and 
that  he  presents  by  his  conduct  a shameful  contrast  to  Grace  Dar- 
ling, who  placed  her  life  in  peril  to  redeem  the  passengers  and  crew 
from  a wreck,  in  the  neighborhood  of  a light-house  of  which  her 
father  was  the  keeper. 

Now  this  is  all  very  poetical,  very  beautiful,  and  what  embraces 
more,  very  gallant  on  the  part  of  my  learned  friend.  Rather  than 
take  the  laurel  from  the  brow  of  Grace  Darling  or  any  other  dar- 
ling, I would  wear  the  cypress  round  my  own  ; but  you  will  still  al- 
low me  to  say,  there  is  a vast  difference  between  an  experiment  in 
a life-boat  and  almost  within  hail  of  the  shore,  and  the  scene  to 
which  our  attention  is  here  called — one  hundred  leagues  from  land 
— in  the  darkness  of  night  and  surrounded  by  icebergs.  The  captain 
was  not  bound  to  do  more  than  he  did  ; he  was  bound  to  do  all 
that  he  did.  His  calmness  and  composure  in  the  midst  of  these 
horrible  scenes  contributed  to  save  the  lives  of  upwards  of  fifty 
human  beings  ; although  it  is  true  that  he  was  not  enabled  to  rescue 
those  who  remained  on  board  of  the  ship.  Their  temporary  rescue 
would  have  resulted  finally  in  the  loss  of  all. 

As  to  his  sacrificing  his  own  life,  sympathy  for  others  forbade  it. 
If  he  and  all  of  the  sailors  had  perished,  so  far  from  its  operating 
to  the  benefit  of  the  passengers,  it  would  have  proved  their  inevi- 
table and  total  destruction. 

But,  says  the  gentleman,  why  didn’t  he  construct  a raft  ? he  had 
an  hour  to  do  it  in.  He  had  no  assurance  of  a moment  ; the  ship 
was  laden  with  iron  ; two  columns  of  water  of  the  thickness  of  a 
man’s  body  were  pouring  through  the  stem  of  the  ship  into  her  very 
vitals.  And  although  nearly  an  hour  elapsed  after  leaving  her,  and 
before  she  sunk,  how  was  he  to  determine  upon  the  probability  of 
her  surviving  the  shock?  The  learned  counsel’s  argument  is  quite 
consistent  throughout  the  case.  He  says  a raft  should  have  been 
constructed,  because  it  turned  out  that  the  vessel  did  not  sink  for 
an  hour  ; as  he  says  that  the  men  should  not  have  perished,  be- 
cause a ship  afterwards  hove  in  sight. 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  141 


But  it  is  further  said  by  the  learned  gentleman,  that  the  captain 
might  have  taken  off  more  of  the  passengers.  That  suggestion  is 
in  direct  opposition  to  the  evidence.  The  gunwales  of  the  boat 
were  within  six  or  eight  inches  of  the  water  ; a single  additional 
person  would  have  swamped  them  ; and  thus  all  must  have  per- 
ish, perhaps,  from  an  ill-judged  effort  to  save  one.  The  conduct  of 
the  captain  was  not  only  judicious,  but  humane.  If  he  had  re- 
turned alongside  of  the  ship,  he  would  have  been  ingulfed  by  the 
vortex  produced  by  her  sinking,  or  subjected  to  a calamity  scarcely 
less  terrible,  by  some  of  the  inmates  of  the  ship  jumping  into  the 
boats.  As  to  the  suggestion  that  he  might  have  at  least  rescued 
the  children  in  the  ship,  that  attempt  would  have  resulted  in  the 
same  consequence,  even  supposing  that  the  perishing  parents  would 
have  been  willing  to  sever  themselves,  in  this  moment  of  direst 
emergency,  from  offspring  more  precious  than  even  life  itself. 

I have  deemed  it  my  duty  to  say  this  much  in  behalf  of  an  ab- 
sent man,  and  a most  meritorious  and  exemplary  officer  ; not  that 
it  was  by  any  means  essential  to  the  defense,  but  simply  because  it 
was  an  act  of  justice.  If  the  captain  is  so  disgracious  now  in  the 
eyes  of  the  prosecution,  so  culpable  in  the  eye  of  the  law,  why  have 
not  our  learned  adversaries  instituted  legal  proceedings  against 
him,  instead  of  attempting  to  transfer  the  burden  of  his  imputed 
guilt  to  the  shoulders  of  the  prisoner.  The  captain’s  deposition 
was  taken  ; he  was  examined  in  the  office  of  the  attorney  for  the 
United  States  ; he  was  within  the  very  jaws  of  the  Royal  Tiger.,  yet 
those  jaws  did  not  close  upon  him,  with  all  their  thirst  for  blood. 
Now,  however,  that  his  march  is  o’er  the  mountain  wave,  the  coun- 
sel speak  of  his  escape  from  justice,  and  the  horrible  retribution 
that  awaits  his  return.  This  is  the  thunder  without  the  bolt,  or  the 
power  of  Jove  to  wield  it. 

lo.  Narration  of  the  facts,  and  evidence  in  the  case. 

We  pass  now  to  other  scenes.  In  the  morning  of  the  20th  of 
April,  which  was  ushered  in  in  darkness  and  in  gloom,  the  two  boats 
separated  from  each  other  ; the  captain  and  eight  others  directing 
their  course,  in  the  jolly  boat,  for  Newfoundland,  and  the  mate  and 
thirty-three  passengers  and  crew  remaining  in  the  long  boat.  At 
the  time  of  separation,  which  was  on  Tuesday  morning,  the  captain 
directed  his  first  officer,  who  had  left  the  jolly  boat  for  the  long 
boat,  to  endeavor  to  steer  for  the  nearest  point  of  land,  which  was 
two  hundred  and  fifty  miles  off ; and  then  having  taken  a list  of 


142 


SPEECH  OF  DAYID  PAUL  BROWN 


those  on  board  of  the  long  boat,  he  bade  them  a melancholy  adieu. 
In  parting,  the  mate  begged  him  to  take  some  of  the  passengers  in- 
to the  jolly  boat ; the  captain  refused  it  as  a matter  of  impossibil- 
ity ; the  mate  declared  that  his  boat  would  sink,  or  they  should 
• have  to  cast  lots  ; and  the  captain,  clearly  acquiescing  in  that  prob- 
able necessity,  begged  that  it  might  be  the  last  resort. 

Shortly  after  the  departure  of  the  jolly  boat,  the  sad  series  of 
disasters  commenced,  which  terminates  in  the  lamentable  catas- 
trophe in  which  this  trial  originated.  Nothing  before  this  point  of 
time  bears  directly  upon  this  question,  although  there  is  much  in 
the  scenes  referred  to,  calculated  to  touch  the  most  callous  heart. 

At  the  time  the  boats  parted  company,  or  shortly  after,  it  was 
raining  heavily ; the  air  was  very  cold,  from  the  proximity  of  the 
ice  ; and  the  miserable,  half  naked  passengers  were  benumbed  by 
exposure  and  hardships  to  which  they  had  been  subjected  the  pre- 
ceding night.  The  long  boat  had  leaked  from  the  time  she  left  the 
ship  ; the  plug  had,  in  some  way,  been  removed,  and  another  was 
substituted.  The  second  plug  was  lost,  and  a variety  of  expedients 
were  from  time  to  time  resorted  to  to  supply  its  place,  as  well  as  to 
stop  the  other  leaks.  Added  to  this,  the  long  boat  was,  in  her  situ- 
ation, entirely  unmanageable.  The  testimony  of  the  mate  and  cap- 
tain, which  is  not  contradicted  by  any  of  the  witnesses,  places  this 
beyond  the  reach  of  doubt.  Parker,  the  mate,  says  : I have  fol- 

lowed the  sea  for  twenty-one  years.  I think  the  long  boat  was  too 
unmanageable  to  be  saved,  from  the  experience  I have  had.  If 
there  had  been  no  leak,  I do  not  think  they  would  have  been  able 
to  save  themselves.”  Again,  upon  the  cross-examination:  “The 
long  boat  being  unmanageable,  I thought  she  would  have  sunk  the 
first  night.  By  unmanageable  I mean  they  could  not  put  her  head 
from  one  point  to  another — she  was  going  round  like  a tub  ; she 
was  like  her  own  mistress — they  could  not  keep  her  head  any  one 
way,  not  even  for  a minute.” 

And  Captain  Harris  is  equally  clear  and  explicit  upon  the  sub- 
ject, when  he  informs  us  : “ That  the  long  boat  leaked,  that  they 
attempted  to  bail,  but  could  not  make  out  anything ; they  were  so 
thronged  in  the  boat.  She  would  not  have  supported  one-half  she 
had  in  her,  had  there  been  a moderate  blow,  even  without  a leak. 
The  gunwale  was  about  twelve  inches  above  the  surface  of  the  sea.” 

Again,  speaking  on  the  same  subject,  the  captain  says:  “I 
found  she  was  unmanageable,  and  that  it  was  useless  for  me  to 
waste  further  time  with  them  ; they  could  not  use  the  oars  ; they 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  143 


could  not  steer  the  boat,”  &c.  And,  further  : “ A very  little  irreg- 
ularity in  stowage  would  have  capsized  the  long  boat ; a moderate 
flaw  would  have  swamped  her  very  quickly.” 

On  Tuesday  it  rained  heavily  all  day;  the  sailors  were  employed 
in  rowing  at  times  ; the  passengers  took  their  turns  in  bailing,  and 
it  is  perfectly  apparent  from  the  proof,  that  this  course  continued, 
with  but  little  intermission  or  relaxation,  until  the  dreary  night 
closed  in.  At  this  time  the  wind  increased,  the  waves  ran  high,  at 
times  dashing  into  the  boat,  depositing  ice  upon  the  already  half 
frozen  passengers  and  crew;  and  at  the  same  time  calling  for  re- 
newed exertion,  while  impairing  the  ability  to  make  it.  At  length, 
abandoned  to  despair,  the  water  increasing  in  the  boat,  and  the 
peril  of  death  being  imminent  and  apparently  inevitable,  a cry  of 
horror  is  heard  from  various  quarters,  exclaiming  : “ We  are  sink- 
ing ! We  are  sinking  ! ” Then  it  was  that  the  mate,  who,  unmur- 
muringly  had  taken  his  post  in  the  very  throat  of  death,  at  the 
command  of  the  captain,  perceiving  that  everything  was  reduced  to 
a state  of  utter  hopelessness,  and  unable  longer  to  repress  his  emo- 
tions, cried  out : “ Help  me,  God  ! this  will  not  do  ; men,  go  to 
work.”  The  witnesses  all  agree  in  regard  to  these  expressions  of 
the  mate  ; some,  however,  say  they  were  thrice  repeated  before 
they  were  obeyed,  and  finally  the  obedience  of  the  crew  was  the 
death  of  sixteen  of  the  passengers,  by  which,  alone,  in  all  human 
probability,  the  remaining  seventeen  passengers  and  nine  seamen 
were  saved. 

II.  The  impulses  which  led  to  the  catastrophe 

CONSIDERED. 

Here  let  us  pause,  to  ascertain,  if  we  can,  what  were  the  im- 
pulses, the  secret  impulses,  the  direct  impulses  that  led  to  this  de- 
plorable catastrophe.  I deny,  emphatically,  the  correctness  of  the 
doctrine  of  the  prosecution,  that  if  there  be  any  doubts  of  the  suffi- 
ciency of  the  cause  which  led  to  the  death,  the  defendant  should 
be  convicted.  This  inverts  the  whole  current  of  the  philosophy  of 
criminal  jurisprudence.  Doubts  of  motive,  doubts  of  acts,  are  al- 
ways doubts  of  guilt ; and  reasonable  doubts  of  guilt  must  result 
in  acquittal.  I am  strengthened  in  this  position  by  the  indisputable 
fact  that  Holmes,  the  prisoner,  during  the  whole  voyage,  was  upon 
the  kindest  and  most  harmonious  terms  with  all  the  passengers  ; 
that  he  preserved  the  same  friendly  relation  to  them  after  the  loss 
of  the  ship  ; that  he  had  periled  his  life  more  than  once  to  preserve 


144 


SPEECH  OF  DAVID  PAUL  BROWN 


them  ; that  he  had  literally  stripped  himself  of  his  apparel  for  their 
comfort : in  short,  his  desire  to  save  them  seemed  to  absorb  all 
consideration  of  mere  personal  or  individual  safety.  In  these  cir- 
cumstances, to  suppose  anything  cruel  or  wanton  upon  his  part,  is 
to  run  counter  to  everything  that  is  possible  or  natural.  I infer, 
therefore,  that  he  supposed  the  peril  to  be  imminent  and  instantane- 
ous, or  he  never  would  have  complied  with  the  orders  of  the  mate; 
and  that  the  mate  who  gave  the  order,  did  it  under  the  impression 
of  direct  necessity,  is  too  obvious  to  require  or  admit  of  argument. 

On  Tuesday  night,  I say,  about  lo  o’clock,  the  boat  filled  with 
water  from  above  and  below  ; the  wind  having  risen  ; the  waves 
having  increased  ; the  ice  accumulating,  and  the  passengers  shriek- 
ing with  horror  at  the  prospect  of  drowning  ; the  final,  fatal  order 
was  given.  It  is  not  to  be  supposed  that  these  hardy  sons  of  the 
sea  were  unnecessarily  alarmed.  That  Holmes,  particularly,  was  a 
brave,  resolute,  and  determined  seaman,  as  well  as  a most  humane 
man,  no  one  will  venture  to  deny  ; that  he  had  but  one  supposablc 
object,  which  was  to  save  such  as  might  be  saved,  is  equally  clear. 
I maintain,  therefore,  that  the  most  favorable  construction  is  to  be 
placed  upon  his  motives  ; and  it  is  justly  to  be  inferred  that  he 
acted  upon  the  impression  that  the  danger  was  imminent,  and  that 
death  was  inevitable  to  all,  except  by  resorting  to  those  means 
which  he  actually  adopted. 

We  are  told,  however,  that  he  is  not  the  judge.  I ask,  who  is 
the  judge  ? There  is  a vast  deal  of  difference  between  judging  in  a 
storm  and  judging  of  a representation  of  a storm  ; and,  therefore, 
it  was  that  I said,  that,  in  order  to  a righteous  determination  of  this 
case,  your  verdict  should  be  rendered  in  the  midst  of  perils  such  as 
have  been  described,  instead  of  being  pronounced  while  surrounded 
by  all  the  securities  and  sanctions  of  the  law.  I agree  that  if  you 
can  conceive  of  any  other  inducement  than  the  desire  of  self-pres- 
ervation, and  that  of  the  majority  of  the  passengers,  inducing  this 
act,  which  I defy  you  to  do,  you  may  then  imagine  that  that  in- 
ducement led  to  the  act,  and  thereby  divest  the  prisoner  of  his 
present  defense  ; but  even  taking  all  the  statements  of  the  witnesses 
for  the  prosecution,  highly  colored — I will  not  say  discolored — as 
they  are,  and  torture  them  as  you  may,  it  is  impossible  for  you  to 
arrive  at  any  other  conclusion  than  that  Holmes  was  actuated  by 
the  kindest  and  most  generous  influences  ; and  certainly  I need  not 
say  that  kindness  and  generosity  are  opposed  to  wantonness  and 
barbarity. 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  145 


I repeat,  then,  that  in  these  circumstances  of  terror  men  are 
left  to  their  honest  determinations.  They  are  not  to  resort  to  mere 
imaginary  evils  as  a pretext,  nor  are  they  to  be  supposed  to  resort  to 
them  as  a pretext.  If  they  err  in  their  determination,  according  to 
the  rules  adopted  by  a cold  system  of  reasoning,  their  error,  as 
thus  detected,  is  not  to  be  visited  upon  them  as  a crime. 

12.  Self-preservation  the  first  law  of  nature. 

Suppose  two  men,  occupying  perfectly  friendly  relations  to  each 
other,  should  be  cast  away,  and  both  seize  the  same  plank  (to  me 
the  favorite  illustration),  and  one  should  thrust  the  other  off ; would 
it  not  be  monstrous,  upon  the  trial  of  the  alleged  offender,  that  the 
plank  should  be  brought  into  court  and  submitted  to  some  men  of 
approved  skill,  and  measured  and  examined  by  square,  rule  and 
compass  ; its  specific  gravity  ascertained,  and  the  possibility  of  its 
sufficiency  to  sustain  two  men  discussed  and  decided  ; and,  upon 
the  basis  of  such  calculation  as  that,  the  prisoner  should  be  de- 
prived of  his  liberty  or  his  life  ; when,  if  you  had  placed  the  wit- 
nesses in  his  precise  situation,  and  they  had  been  called  upon  to 
act  upon  a sudden  emergency,  they  would  have  done  precisely  what 
he  did,  and  what  every  principle  of  natural  law  abundantly  war- 
rants. It  is  worse  than  idle  to  suppose,  that  in  such  a critical  junc- 
ture as  this  men  are  to  cast  lots  or  toss  up  for  their  lives.  In  such 
peril  a man  makes  his  own  law  with  his  own  right  arm. 

But,  say  the  learned  counsel,  had  the  passengers  been  permitted 
to  remain  until  the  morning,  they  might  have  been  saved  by  the 
Crescent.  I answer,  had  they  remained  a single  hour,  they  would 
have  never  seen  the  morning  ; every  man,  woman  and  child,  would 
have  weltered  in  the  coral  caves  of  the  ocean.  The  approach  of 
the  Crescent  could  not,  even  in  point  of  fact,  have  operated  to  al- 
leviate their  fears  ; without  prescience,  they  could  have  anticipated 
no  such  relief.  Men  are  to  act  upon  the  past  and  the  present ; the 
future  belongs  to  God  alone. 

You  are  told,  however,  that  the  condition  of  the  boat  was  not 
hopeless ; that  she  was  on  “ the  great  high  road  of  nations,”  and 
that  there  was  every  prospect  of  her  being  picked  up.  The  gentle- 
man speaks  of  the  great  high  road  of  nations  over  the  pathless 
ocean,  as  if  it  were  the  Chesapeake  and  Delaware  canal,  in  which 
two  vessels  could  scarcely  pass  abreast.  The  “ President,”  steamer, 
sunk  probably  upon  this  great  high  road,  leaving  no  voice  to  tell 
her  fate.  Surrounded,  as  the  boat  was,  by  mountains  of  ice,  no 
10 


146 


SPEECH  OF  DAVID  PAUL  BROWN 


ship  would  probably  ever  have  reached  her,  if  steering  in  that  direct 
course.  Fate  itself  seemed  to  forbid  it ; nay,  no  vessel,  says  the 
captain,  would  have  ventured  among  the  ice,  had  the  position  of 
the  boat  been  known ; as  no  commander,  however  philanthropic, 
would  have  so  far  periled  his  own  hopes  in  order  to  redeem  the 
lives  of  others.  The  chances  of  rescue  were  entirely  too  remote 
then — ninety-nine  chances  against  one,  say  the  witnesses — to  enter 
into  the  calculation  of  the  mate  and  crew,  had  their  circumstances 
even  been  such  as  to  allow  them  dispassionately  to  reason  upon  the 
subject ; but  as  it  was,  terror  had  assumed  the  throne  of  reason, 
passion  became  judgment,  and  you  know  the  sequel. 

I have  now  briefly  and  imperfectly  passed  over  that  part  of  the 
case  upon  which  your  decision  must  mainly  turn  ; but  before  I 
close,  let  me  direct  your  attention  to  another  circumstance  which 
casts  a reflected  light  upon  the  matters  already  adverted  to.  I refer 
to  the  occurrence  of  the  next  day  ; and  this  leads  me  to  present  to 
your  view  another  picture  in  this  nautical  gallery. 


13.  The  survivors  saved,  solely  through  the  instrumen- 
tality OF  THE  DEFENDANT. 

On  Wednesday,  the  21st  of  April,  the  morning  dawns  ; yet  the 
sun  still  shrouds  his  face  amidst  shadowy  clouds  and  darkness,  from 
the  traces  of  horror  which  the  past  night  had  left.  You  may  see, 
gentlemen  of  the  jury,  without  any  extraordinary  stretch  of  fancy, 
on  that  awful  morning,  a small  boat,  in  the  center  of  the  ocean, 
with  a single  sailor,  apparently  engaged  in  an  effort  to  rig  out  a 
sail,  baring  his  brow  and  his  breast  to  the  bleak  winds  that  howl 
around  him,  with  no  one  to  impart  encouragement  or  aid,  deserted 
by  earth  and  frowned  upon  by  Heaven.  That  man  was  Holmes, 
the  prisoner  at  the  bar.  His  messmates  have  sunk  exhausted  into 
the  bottom  of  the  boat ; the  mate  is  lost  in  dismay  ; the  passengers 
are  buried  in  hopelessness  and  horror  : 

Silent  they  sit, 

All  faculties  absorbed  by  black  despair ; 

The  world  is  banish’d,  and  the  soul  is  dead 
To  earthly  sympathy — to  earthly  care, 

Brooding  alone  on  its  eternal  fate. 

And  prostrate  in  the  presence  of  its  God. 

And  there,  amidst  this  solemn  and  harrowing  scene,  the  defend- 
ant stands,  toiling  and  struggling  to  the  last,  not  for  himself,  but 


IN  DEFENSE  OF  ALEXANDER  WILLIAM  HOLMES.  147 


for  those  very  persons  who,  having  forgotten  their  gratitude  with 
their  danger^  now  appear  before  you  to  pay  for  their  own  life  by 
depriving  their  preserver  of  his.  Whether  this  mode  of  discharging 
obligations  shall  meet  with  your  approval,  it  will  remain  for  your 
verdict  to  decide. 

I have  now  done.  I am  perfectly  sensible  of  the  power  of  the 
learned  counsel  opposed  to  me;  and  if  this  case  is  to  be  determined 
by  the  comparative  strength  or  skill  of  the  advocates,  I have  much 
cause  for  alarm.  My  gallant  friend  who  opened  the  conflict,  ap- 
peared like  Apollo,  radiant  in  his  glory,  balancing  his  body,  adjust- 
ing his  bow,  and  directing  his  shaft — his  golden  pointed  shaft — at  the 
very  heart  of  his  intended  victim.  By  and  by,  his  colleague,  who 
may  be  compared  to  Hercules,  will  take  the  field  with  his  club,  and 
exert  all  his  stupendous  powers  to  demolish  this  defense.  Still, 
armed  in  the  panoply  of  justice,  I entertain  no  fear,  for  after  all, 
gentlemen  of  the  jury,  what  is  a giant  when  wrapped  up  in  a 
QUILT  ? Against  all  these  odds,  therefore,  I stand  firmly  by  the 
side  of  that  man,  who  always  stood  firmly  by  others.  The  destiny, 
the  worldly  destiny,  of  the  prisoner  is  now  confided  to  your  hands. 
Do  with  him  as  you  would  be  done  by. 


N.  B. — The  prisoner’s  counsel  requested  the  Court  to  charge,  that  in  a state 
of  imminent  and  deadly  peril  all  men  are  reduced  to  a state  of  nature;  that 
when  the  vessel  went  down  the  voyage  was  at  an  end,  and  that  there  was  then 
no  longer  any  distinction  between  the  rights  of  sailors  and  passengers.  The  Court 
declined  so  to  charge.  His  statement  of  the  law  was  substantially  as  follows  : 
The  passenger  stands  in  a position  different  from  that  of  officers  and  seamen.  It 
is  the  sailor’s  duty  to  encounter  the  hardships  and  perils  of  the  voyage.  The  pas- 
senger owes  no  duty  but  submission;  he  is  under  no  obligation  to  protect  and  keep 
the  conductor  in  safety  ; he  is  not  bound  to  labor,  except  in  cases  of  emergency, 
where  his  services  are  required  by  unanticipated  and  uncommon  danger.  This 
relation  is  not  changed  when  the  ship  is  lost  by  tempest  or  other  dangers  of  the 
sea,  because  impending  danger  cannot  absolve  from  duty.  Should  the  danger 
become  extreme,  so  as  to  require  the  sacrifice  of  human  life,  the  rule  of  law  is 
the  same.  Since  the  passenger  is  not  bound  to  labor  or  incur  the  risk  of  life,  he 
is  not  bound  to  sacrifice  his  existence  to  preserve  the  sailor.  The  captain  and  a 
sufficient  number  of  seamen  to  navigate  the  boat  must  be  preserved,  “ for  except 
these  abide  in  the  ship  all  shall  likewise  perish;  ” but  supernumerary  sailors  have 
no  right  to  sacrifice  the  passengers  to  secure  their  own  safety.  In  the  eye  of  the 
law,  the  positions  of  sailor  and  passenger  are  not  equal ; nor  are  the  relations  be- 
tween them  absolved  by  the  law  of  nature,  or  the  laws  of  necessity,  under  any 
circumstances.  As  between  sailor  and  sailor,  or  passenger  and  passenger,  they 
may  lawfully  struggle  with  each  other  for  the  same  plank  which  can  save  but 


148 


SPEECH  OF  DAVID  PAUL  BROWN. 


one;  but  if  the  passenger  is  on  the  plank,  even  the  law  of  necessity  justifies  not 
the  sailor  who  takes  it  from  him.  As  between  those  in  equal  relations,  they 
must  have  an  equal  chance  for  life  when  the  destruction  is  ascertained  to  be  cer- 
tain, and  must  arrive  in  the  near  future.  As,  for  example,  when  all  sustenance 
has  been  exhausted,  and  a sacrifice  of  one  person  is  necessary  to  appease  the 
hunger  of  the  others,  the  fairest  mode  of  selection  is  by  lot,  which  all  writers 
have  regarded  as  just,  being  in  one  sense  an  appeal  to  God  for  the  selection  of 
the  victim. 

The  jury  retired,  and  after  sixteen  hours  deliberation  returned  a verdict  of 
guilty.  The  defendant  was  sentenced  to  six  months  imprisonment  at  hard  labor, 
and  to  pay  a fine  of  twenty  dollars. 


SPEECH  OF  WILLIAM  H.  SEWARD, 

In  Defense  of  the  Negro,  William  Freeman,  Indicted  fop 
THE  Murder  of  John  G.  Van  Nest. 

AT  THE  CAYUGA  OYER  AND  TERMINER,  HELD  AT  THE 
VILLAGE  OF  AUBURN,  N.  Y.,  JULY  TERM,  1846. 


Analysis  of  Mr.  Seward’s  Speech. 


1.  The  execution  of  a madman  is  murder, 

2.  The  defense  is  interposed  in  behalf  of 

justice  and  humanity,  for  society  and 
mankind. 

3.  The  preliminary  verdict  as  to  the  prison- 

er’s sanity,  imperfect  and  unjust. 

4.  The  standard  of  inteLigence  by  which 

the  prisoner  must  be  judged. 

5.  Insanity,  though  often  counterfeited,  is  a 

perfect  defense. — How  the  truth  of  the 
plea  may  be  tested. 

6.  Relations  of  the  law  towards  the  insane. 

— Review  of  Kleim’s  case. 

7.  Public  security  does  not  require  the  sac- 

rifice of  the  prisoner. 

g.  Difficulty  of  detecting  insanity. — The 


human  mind  incapable  of  complete 
obliteration. 

9.  Insanity  defined. 

10.  Why  the  prisoner  could  not  possibly 

simulate  madness. 

11.  Insanity  of  the  prisoner  demonstrated. — 

The  various  causes  of  insanity  dis- 
cussed. 

12.  Delusion,  when  shown,  incontestable 

proof  of  insanity.  — Illustrations  of 
the  subject. 

13.  The  circumstances  of  the  murder  tested 

by  scientific  rules. 

14.  The  personal  appearance  and  demeanor 

of  the  prisoner  the  strongest  proof  of 
his  insanity. 


William  Freeman  was  born  at  Auburn,  in  the  county  of  Cayuga,  in  the  year 
1824.  When  he  arrived  at  the  age  of  sixteen,  he  was  accused  of  having  stolen 
a horse  belonging  to  a Mrs.  Godfrey.  He  stoutly  protested  his  innocence,  and 
after  an  examination  before  a magistrate,  was  discharged.  The  horse  was  after- 
wards found.  It  had  been  purchased,  it  was  said,  from  a negro  answering  the 
description  of  one  Jack  Furman,  who  was  accordingly  arrested.  The  latter, 
knowing  that  Freeman  had  been' previously  suspected  of  the  offense,  now  re- 
newed the  charge  against  him,  and  offered  to  implicate  Freeman,  provided  he 
should  himself  be  released.  Freeman  was  convicted  on  Furman’s  evidence,  and 
the  latter,  the  real  thief,  was  discharged  as  a reward  for  his  perjury;  for  it  after- 
wards became  clear  that  Freeman  was  at  another  place  the  night  the  horse  was 
stolen.  The  conviction  affected  Freeman’s  mind.  He  could  not  comprehend 
why  he  should  be  shut  up  in  prison  for  no  offense.  He  pleaded  his  innocence, 
and  begged  in  vain  to  be  released,  but  received  no  sympathy.  His  patience 
finally  became  exhausted ; he  grew  restive  and  quarrelsome;  and  met  only  with 
ill-treatment  and  abuse.  One  day,  his  keeper,  with  whom  he  had  a difficulty, 
struck  him  a terrible  blow  on  the  temple  with  a heavy  basswood  board,  from  the 
effects  of  which  he  never  recovered.  To  use  his  own  words,  “ It  knocked  all 
the  hearing  off  so  that  it  never  came  back.”  He  became  deaf,  grew  sullen, 

/ [149] 


150 


SPEECH  OF  WILLIAM  II.  SEWARD 


downcast  and  morose.  A post  mortem  examination  revealed  the  fact  that  the 
drum  of  his  left  ear  had  been  broken,  and  his  left  temporal  bone  was  carious 
and  diseased.  He  was  considered  deranged  before  his  release.  He  brooded 
over  his  unjust  imprisonment,  and  talked  of  nothing  but  getting  his  pay  for  the 
time  he  had  spent  in  prison.  The  mania  grew  upon  him,  and  when  he  was 
finally  discharged  at  the  expiration  of  his  term,  he  applied,  on  several  occasions, 
for  warrants  against  persons  in  order,  he  said,  to  get  “ his  pay,”  but  his  language 
was  incoherent  and  broken;  and  he  grew  weak  and  foolish. 

John  G.  Van  Nest,  a wealthy  and  respectable  farmer,  lived  with  his  family 
in  the  town  of  Fleming,  on  the  western  border  of  the  Owasco  Lake,  about  three 
and  a half  miles  south  of  the  village  of  Auburn.  At  about  half  past  nine  o’clock 
on  the  evening  of  the  I2th  of  March,  1846,  Mr.  Van  Nest,  who  was  about  to  re- 
tire, heard  proceeding  from  the  back  yard  the  shrieks  of  his  wife.  He  opened 
the  door,  and  almost  instantly  received  a fatal  wound  from  the  hand  of  an  assassin, 
and  died  without  a struggle.  Helen  Holmes,  a domestic,  in  another  apartment, 
hearing  the  noise,  opened  the  door,  when  Mrs.  Van  Nest,  pale,  haggard  and 
covered  with  blood,  staggered  into  the  house,  fell  upon  the  floor,  and  expired. 
Mrs.  Wyckoff,  a member  of  the  family,  in  her  attempt  to  escape, was  struck  down 
by  the  murderer,  who  had,  by  this  time,  entered  the  dwelling.  The  wretch,  in 
passing,  slew  an  infant  sleeping  in  the  room,  but,  in  attempting  to  ascend  the 
stairs,  was  confronted  by  Mr.  Van  Arsdale,  a farm  laborer  employed  by  Mr.  Van 
Nest,  who  succeeded  in  driving  his  assailant  from  the  premises,  though  he  re- 
ceived a terrible  wound  in  the  encounter.  The  murderer  stole  a horse  close  by 
and  made  good  his  escape.  Before  he  had  gone  far,  he  stabbed  the  animal,  pro- 
cured another,  and  continued  his  flight  into  Oswego  county,  and  was  captured  the 
next  day,  a distance  of  forty  miles  from  the  scene  of  the  tragedy.  The  assassin 
was  William  Freeman. 

The  conduct  of  Mr.  Seward,  in  undertaking  the  defense  of  Freeman,  when 
he  was  arraigned  for  the  murder,  was  an  exhibition  of  moral  courage  almost 
without  a parallel.  The  crime  charged  was  terrible  and  appalling,  and  wrought 
upon  the  public  mind  to  such  a degree,  it  was  almost  a miracle  how  the  pris- 
oner escaped  swift  destruction  at  the  hands  of  the  mob.  He  was  without 
money  and  without  friends.  He  sprung  from  a race  socially  and  politically  de- 
based. His  father  had  been  a slave,  and  the  son  was  a person  of  idle  and  in- 
temperate habits,  and,  though  only  twenty-three,  had  spent  five  years  of  his  life 
in  State  prison.  Yet  Mr.  Seward  was  convinced  that  the  poor  wretch  was,  at 
the  time  of  the  offense,  destitute  of  reason,  and  suffering  from  dementia  ap- 
proaching to  idiocy.  He  believed  the  execution  of  such  a being  would  be  mur- 
der, and  he  determined  to  spare  the  community  the  disgrace  of  hanging  a mad- 
man, even  at  the  cost  of  his  own  popularity.  The  storm  of  public  indignation 
beat  so  fiercely  about  him,  that  at  one  time,  fears  were  entertained  for  his  per- 
sonal safety.  In  a letter  to  a friend,  he  thus  referred  to  the  subject:  “ There  is 
a busy  war  around  me  to  drive  me  from  securing  a fair  trial  for  the  negro  Free- 
man. . . . No  priest  (except  one  Universalist),  no  Levite,  no  lawyer,  no 

man,  no  woman,  has  visited  him.  He  is  deaf,  deserted,  ignorant,  and  his  con- 
duct is  unexplainable  on  any  principle  of  sanity.  It  is  natural  he  should  turn  to 
me  to  defend  him.  If  he  does,  I shall  do  so.  This  will  raise  a storm  of  preju- 
dice and  passion  which  will  try  the  fortitude  of  my  friends.  But  I shall  do  my 
duty.  I care  not  whether  1 am  to  be  ever  forgiven  for  it  or  not.” 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


151 


In  addressing  the  jury  upon  the  preliminary  trial,  to  test  the  question  as  to 
the  prisoner’s  sanity,  he  said:  “In  due  time,  gentlemen  of  the  jury,  when  I 
shall  have  paid  the  debt  of  nature,  my  remains  will  rest  here  in  your  midst, 
with  those  of  my  kindred  and  neighbors.  It  is  very  possible  they  may  be  un- 
honored, neglected,  spurned  ! But  perhaps,  years  hence,  when  the  passion  and 
excitement  which  now  agitate  the  community  shall  have  passed  away,  some 
Avandering  stranger,  some  lone  exile,  some  Indian,  some  negro,  may  erect  over 
them  an  humble  stone,  and  thereon  this  epitaph.  He  was  faithful,” 

On  the  iSth  of  May,  1846,  indictments  were  found  against  Freeman,  at  the 
General  Sessions  of  Cayuga  county,  which  were,  under  the  statute,  sent  to  the 
Oyer  and  Terminer  on  the  1st  of  June  following.  When  about  to  be  arraigned, 
Mr.  Seward  voluntarily  interposed  in  his  behalf  a plea  of  insanity,  upon  which 
issue  was  joined,  and  on  the  24th  of  June  the  Court  directed  the  question  to  be 
tried  by  a jury.  After  quite  a lengthy  trial,  on  the  5th  of  July  the  following 
verdict  was  rendered:  “We  find  the  prisoner  sufficiently  sane  in  mind  and 
memory  to  distinguish  between  right  and  wrong.”  Mr.  Seward  excepted  to  the 
verdict,  and  requested  the.  Court  to  instruct  the  jury  to  find  whether  the  prisoner 
was  sane  or  insane,  which  was  refused.  The  next  day  (Monday),  July  6th,  the 
prisoner  was  brought  up  for  trial.  Mr.  Seward  objected  to  his  being  required  to 
plead,  because  the  verdict  on  the  preliminary  trial  did  not  determine  the  question 
as  to  the  prisoner’s  sanity.  Objection  overruled.  When  asked  if  he  demanded 
a trial,  the  prisoner  answered  “no,”  The  Court,  however,  directed  a plea  of 
“not  guilty”  to  be  entered  for  him,  and  ordered  the  trial  to  proceed.  Mr.  Sew- 
ard volunteered  to  remain  counsel  for  the  prisoner  until  his  death.  He  con- 
ducted the  case  with  great  ability,  and  called  many  witnesses  to  establish  his 
only  defense,  insanity.  The  following  counsel  appeared  on  the  trial.  For  the 
people,  John  Van  Buren  (Attorney-General)  and  Luman  Sherwood,  For  the 
prisoner,  William  H.  Seward,  David  Wright  and  Christopher  Morgan.  Hon. 
Samuel  Bla'cbfnrd  was  a'^sociated  with  Mr.  Seward  in  the  preliminary  trial. 

in  closing  the  case,  in  behalf  of  the  prisoner,  Mr.  Seward  addressed  to  the 
jury  the  following  powerful  appeal : 

May  it  please  the  Court, — Gentlemen  of  the  Jury  : — “ Thou 
shalt  not  kill,”  and,  ‘‘Whoso  sheddeth  man’s  blood  by  man  shall 
his  blood  be  shed,”  are  laws  found  in  the  code  of  that  people  who, 
although  dispersed  and  distracted,  trace  their  history  to  the  crea- 
tion; a history  which  records  that  murder  was  the  first  of  human 
crimes. 

The  first  of  these  precepts  constitutes  a tenth  part  of  the  juris- 
prudence which  God  saw  fit  to  establish,  at  an  early  period,  for  the 
government  of  all  mankind  throughout  all  generations.  The  latter, 
of  less  universal  obligation,  is  still  retained  in  our  system,  although 
other  States  as  intelligent  and  refined,  as  secure  and  peaceful,  have 
substituted  for  it  the  more  benign  principle  that  good  shall  be  re- 
turned for  evil.  I yield  implicit  submission  to  this  law,  and  ac- 
knowledge the  justice  of  its  penalty,  and  the  duty  of  courts  and 
juries  to  give  it  effect. 


152 


SPEECH  OF  WILLIAM  H.  SEWARD 


In  this  case,  if  the  prisoner  be  guilty  of  murder,  I do  not  ask 
remission  of  punishment.  If  he  be  guilty,  never  was  murderer  more 
guilty.  He  has  murdered,  not  only  John  G.  Van  Nest,  but  his 
hands  are  reeking  with  the  blood  of  other,  and  numerous,  and  even 
more  pitiable  victims.  The  slaying  of  Van  Nest,  if  a crime  at  all, 
was  the  cowardly  crime  of  assassination.  John  G.  Van  Nest  was 
a just,  upright,  virtuous  man,  of  middle  age,  of  grave  and  modest 
demeanor,  distinguished  by  especial  marks  of  the  respect  and  es- 
teem of  his  fellow  citizens.  On  his  arm  leaned  a confiding  wife, 
and  they  supported,  on  the  one  side,  children  to  whom  they  had 
given  being,  and,  on  the  other,  aged  and  venerable  parents,  from 
whom  they  had  derived  existence.  The  assassination  of  such  a 
man  was  an  atrocious  crime,  but  the  murderer,  with  more  than 
savage  refinement,  immolated  on  the  same  altar,  in  the  same  hour, 
a venerable  and  virtuous  matron  of  more  than  three-score  years, 
and  her  daughter,  wife  of  Van  Nest,  mother  of  an  unborn  infant. 
Nor  was  this  all.  Providence,  which,  for  its  own  mysterious  pur- 
poses, permitted  these  dreadful  crimes,  in  mercy  suffered  the  same 
arm  to  be  raised  against  the  sleeping  orphan  child  of  the  butchered 
parents,  and  received  it  into  Heaven.  A whole  family,  just,  gentle 
and  pure,  were  thus,  in  their  own  house,  in  the  night  time,  without 
any  provocation,  without  one  moment’s  warning,  sent  by  the  mur- 
derer to  join  the  assembly  of  the  just;  and  even  the  laboring  man, 
sojourning  within  their  gates,  received  the  fatal  blade  into  his 
breast,  and  survives  through  the  mercy,  not  of  the  murderer,  but  of 
God. 

For  William  Freeman,  as  a murderer,  I have  no  commission  to 
speak.  If  he  had  silver  and  gold  accumulated  with  the  frugality 
of  Croesus,  and  should  pour  it  all  at  my  feet,  I would  not  stand  an 
hour  between  him  and  the  avenger.  But  for  the  innocent,  it  is  my 
right,  my  duty  to  speak.  If  this  sea  of  blood  was  innocently  shed, 
then  it  is  my  duty  to  stand  beside  him  until  his  steps  lose  their 
hold  upon  the  scaffold. 

I.  The  execution  of  a madman  is  murder. 

“ Thou  shalt  not  kill  ” is  a commandment  addressed,  not  to  him 
alone,  but  to  me,  to  you,  to  the  Court,  and  to  the  whole  community. 
There  are  no  exceptions  from  that  commandment,  at  least  in  civil 
life,  save  those  of  self-defense,  and  capital  punishment  for  crimes 
in  the  due  and  just  administration  of  the  law.  There  is  not  only  a 
question,  then,  whether  the  prisoner  has  shed  the  blood  of  his  fel- 
low man,  but  the  question  whether  we  shall  unlawfully  shed  his 


IX  DEFEX3E  OF  WILLIAM  FREEMAX. 


153 


blood.  I should  be  guilty  of  murder  if,  in  my  present  relation,  I 
saw  the  executioner  waiting  for  an  insane  man  and  failed  to  say,  or 
failed  to  do  in  his  behalf,  all  that  my  ability  allowed.  I think  it 
has  been  proved  of  the  prisoner  at  the  bar,  that  during  all  this  long 
and  tedious  trial,  he  has  had  no  sleepless  nights,  and  that  even  in 
the  day  time,  when  he  retires  from  these  halls  to  his  lonely  cell,  he 
sinks  to  rest,  like  a wearied  child,  on  the  stone  floor,  and  quietly 
slumbers  till  aroused  by  the  constable  with  his  staff,  to  appear 
again  before  the  jury.  His  counsel  enjoy  no  such  repose.  Their 
thoughts  by  day  and  their  dreams  by  night  are  filled  with  op- 
pressive apprehensions  that,  through  their  inability  or  neglect,  he 
may  be  condemned. 

I am  arraigned  before  you  for  undue  manifestations  of  zeal  and 
excitement.  My  answer  to  all  such  charges  shall  be  brief.  When 
this  cause  shall  have  been  committed  to  you,  I shall  be  happy  in- 
deed, if  it  shall  appear  that  my  only  error  has  been,  that  I have 
felt  too  much,  thought  too  intensely,  or  acted  too  faithfully. 

If  my  error  would  thus  be  criminal,  how  great  would  yours  be 
if  you  should  render  an  unjust  verdict  ? Only  four  months  have 
elapsed  since  an  outraged  people,  distrustful  of  judicial  redress, 
doomed  the  prisoner  to  immediate  death.  Some  of  you  have 
confessed  that  you  approved  that  lawless  sentence.  All  men 
now  rejoice  that  the  prisoner  was  saved  for  this  solemn  trial. 
But  this  trial  would  be  as  criminal  as  that  precipitate  sentence  if, 
through  any  willful  fault  or  prejudice  of  yours,  it  should  prove  but 
a mockery  of  justice.  If  any  prejudice  of  witnesses,  or  the  imagi- 
nation of  counsel,  or  any  ill-timed  jest  shall  at  any  time  have 
diverted  your  attention;  or  if  any  prejudgment  which  you  may  have 
brought  into  the  jury  box,  or  any  cowardly  fear  of  popular  opinion 
shall  have  operated  to  cause  you  to  deny  to  the  prisoner  that  dis-i 
passionate  consideration  of  his  case  which  the  laws  of  God  and 
man  exact  of  you,  and  if,  owing  to  such  an  error,  this  wretched 
man  fall  from  among  the  living,  what  will  be  your  crime  ? You 
have  violated  the  commandment,  “ Thou  shalt  not  kill.”  It  is  not 
the  form  or  letter  of  the  trial  by  jury  that  authorizes  you  to  send 
your  fellow  man  to  his  dread  account,  but  it  is  the  spirit  that  sanc- 
tifies that  glorious  institution;  and  if,  through  pride,  passion, 
timidity,  weakness,  or  any  cause,  you  deny  the  prisoner  one  iota  of 
all  the  defense  to  which  he  is  entitled  by  the  law  of  the  land,  you 
yourselves,  whatever  his  guilt  may  be,  will  have  broken  the  com- 
mandment, ‘'Thou  shalt  do  no  murder.” 


154 


SPEECH  OF  WILLIAM  H.  SEWARD 


There  is  not  a corrupt  or  prejudiced  witness,  there  is  not  a 
thoughtless  or  heedless  witness,  who  has  testified  what  was  not  true 
in  spirit,  or  what  was  not  wholly  true,  or  who  has  suppressed  any 
truth,  who  has  not  offended  against  the  same  injunction. 

Nor  is  the  Court  itself  above  the  commandment.  If  these 
judges  have  been  influenced  by  the  excitement  which  has  brought 
this  vast  assemblage  here,  and  under  such  influence,  or  under  any 
other  influence,  have  committed  voluntary  error,  and  have  denied 
to  the  prisoner,  or  shall  hereafter  deny  to  him,  the  benefit  of  any 
fact  or  any  principle  of  law,  then  this  Court  will  have  to  answer  for 
the  deep  transgression,  at  the  bar  at  which  we  all  shall  meet  again.' 
When  we  appear  there,  none  of  us  can  plead  that  we  were  insane 
and  knew  not  what  we  did;  and  by  just  so  much  as  our  ability  and 
knowledge  exceed  those  of  this  wretch,  whom  the  world  regards 
as  a fiend  in  human  shape,  will  our  guilt  exceed  his,  if  we  be 
guilty. 

2.  The  defense  is  interposed  in  behalf  of  justice  and 

HUMANITY,  FOR  SOCIETY  AND  MANKIND. 

I plead  not  for  a murderer.  I have  no  inducement,  no  motive 
to  do  so.  I have  addressed  my  fellow-citizens  in  many  various 
relations,  when  rewards  of  wealth  and  fame  awaited  me.  I have 
been  cheered  on  other  occasions  by  manifestations  of  popular  ap- 
probation and  sympathy;  and  where  there  was  no  such  encourage- 
ment, I had  at  least  the  gratitude  of  him  whose  cause  I defended. 
But  I speak  now  in  the  hearing  of  a people  who  have  prejudged 
the  prisoner,  and  condemned  me  for  pleading  in  his  behalf.  He  is 
a convict,  a pauper,  a negro,  without  intellect,  sense,  or  emotion. 
My  child,  with  an  affectionate  smile,  disarms  my  care-worn  face 
of  its  frown  whenever  I cross  my  threshold.  The  beggar  in  the 
street  obliges  me  to  give,  because  he  says  “ God  bless  you  ” as  I 
pass.  My  dog  caresses  me  with  fondness  if  I will  but  smile  on 
him.  My  horse  recognizes  me  when  I fill  his  manger.  But  what 
reward,  what  gratitude,  what  sympathy  and  affection  can  I expect 
here  ? There  the  prisoner  sits.  Look  at  him.  Look  at  the  as- 
semblage around  you.  Listen  to  their  ill-suppressed  censures  and 
their  excited  fears,  and  tell  me  where,  among  my  neighbors  or  my 
fellow  men,  where,  even  in  his  heart,  I can  expect  to  find  the  senti- 
ment, the  thought,  not  to  say  of  reward  or  of  acknowledgment,  but 
even  of  recognition.  I sat  here  two  weeks  during  the  preliminary 
trial.  I stood  here,  between  the  prisoner  and  the  jury,  nine  hours, 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


155 


and  pleaded  for  the  wretch  that  he  was  insane  and  did  not  even 
know  he  was  on  trial;  and,  when  all  was  done,  the  jury  thought,  at 
least  eleven  of  them  thought,  that  I had  been  deceiving  them,  or 
was  self-deceived.  They  read  signs  of  intelligence  in  his  idiotic 
smile,  and  of  cunning  and  malice  in  his  stolid  insensibility.  They 
rendered  a verdict  that  he  was  sane  enough  to  be  tried — a con- 
temptable  compromise  verdict  in  a capital  case;  and  then  they 
looked  on,  with  what  emotions  God  and  they  only  know,  upon  his 
arraignment.  The  district  attorney,  speaking  in  his  adder  ear, 
bade  him  rise,  and,  reading  to  him  one  indictment,  asked  him 
whether  he  wanted  a trial,  and  the  poor  fool  answered  no.  Have 
you  counsel  ? No.  And  they  went  through  the  same  mockery, 
the  prisoner  giving  the  same  answers,  until  a third  indictment  was 
thundered  in  his  ears,  and  he  stood  before  the  Court  silent,  motion- 
less, and  bewildered.  Gentlemen,  you  may  think  of  this  evidence 
what  you  please,  bring  in  what  verdict  you  can,  but  I asseverate, 
before  Heaven  and  you,  that,  to  the  best  of  my  knowledge  and  be- 
lief, the  prisoner  at  the  bar  does  not,  at  this  moment,  know  why  it 
is  that  my  shadow  falls  on  you  instead  of  his  own. 

I speak  with  all  sincerity  and  earnestness,  not  because  I ex- 
pect my  opinion  to  have  weight,  but  I would  disarm  the  injurious 
impression  that  I am  speaking  merely  as  a lawyer  speaks  for  his 
client.  I am  not  the  prisoner’s  lawyer.  I am,  indeed,  a volunteer 
in  his  behalf,  but  society  and  mankind  have  the  deepest  interest  at 
stake.  I am  the  lawyer  for  society,  for  mankind,  shocked,  beyond 
the  power  of  expression,  at  the  scene  I have  witnessed  here  of  try- 
ing a maniac  as  a malefactor.  In  this,  almost  the  first  of  such 
causes  I have  ever  seen,  the  last  I hope  that  I shall  ever  see,  I wish 
that  I could  perform  my  duty  with  more  effect.  If  I suffered  my- 
self to  look  at  the  volumes  of  testimony  through  which  I have  to 
pass,  to  remember  my  entire  want  of  preparation,  the  pressure  of 
time,  and  my  wasted  strength  and  energies,  I should  despair  of  ac- 
quitting myself  as  you  and  all  good  men  will  hereafter  desire  that 
I should  have  performed  so  sacred  a duty.  But,  in  the  cause  of 
humanity,  we  are  encouraged  to  hope  for  divine  assistance  where 
human  powers  are  weak.  As  you  all  know,  I provided  for  my  way 
through  these  trials,  neither  gold  nor  silver  in  my  purse,  nor  scrip; 
and  when  I could  not  think  before  hand  what  I would  say,  I re- 
membered that  it  was  said  to  those  who  had  a beneficent  commis- 
sion, that  they  should  take  no  thought  what  they  should  say  when 
brought  before  the  magistrate,  for,  in  that  same  hour,  it  should  be 


156 


SPEECH  OF  WILLIAM  H.  SEWARD 


given  them  what  they  should  say,  and  it  should  not  be  they  who 
should  speak,  but  the  spirit  of  their  Father  speaking  in  them. 

You  have  promised,  gentlemen,  to  be  impartial.  You  will  find 
it  more  difficult  than  you  have  supposed.  Our  minds  are  liable  to 
be  swayed  by  temporary  influences,  and  above  all,  by  the  influences 
of  masses  around  us.  At  every  stage  of  this  trial,  your  attention 
has  been  diverted,  as  it  will  be  hereafter,  from  the  only  question 
which  it  involves,  by  the  eloquence  of  the  counsel  for  the  people, 
reminding  you  of  the  slaughter  of  that  helpless  and  innocent 
family,  and  of  the  danger  to  which  society  is  exposed  by  relaxing 
the  rigor  of  the  laws.  Indignation  against  crime,  and  apprehen- 
sions of  its  recurrence,  are  elements  on  which  public  justice  relies 
for  the  execution  of  the  law.  You  must  indulge  that  indignation. 
You  cannot  dismiss  such  apprehensions.  You  will,  in  common 
with  your  fellow-citizens,  deplore  the  destruction  of  so  many  pre- 
cious lives,  and  sympathize  with  mourning  relations  and  friends 
Such  sentiments  cannot  be  censured  when  operating  upon  the 
community  at  large,  but  they  are  deeply  to  be  deplored  when  they 
are  manifested  in  the  jury  box. 

3.  The  preliminary  verdict  as  to  the  prisoner’s  sanity, 

IMPERFECT  AND  UNJUST. 

Then,  again,  a portion  of  this  issue  has  been  tried,  imperfectly 
tried,  unjustly  tried,  already.  A jury  of  twelve  men,  you  are  told, 
have  already  rendered  their  verdict  that  the  prisoner  is  now  sane. 
The  deference  which  right-minded  men  yield  to  the  opinions  of 
others,  the  timidity  which  weak  men  feel  in  dissenting  from  others, 
may  tempt  you  to  surrender  your  own  independence.  I warn  you 
that  that  verdict  is  a reed  which  will  pierce  you  through  and  through. 
That  jury  was  selected  without  peremptory  challenge.  Many  of 
the  jurors  entered  the  panel  with  settled  opinions  that  the  prisoner 
was  not  only  guilty  of  the  homicide,  but  sane,  and  all  might  have 
entertained  such  opinions  for  all  that  the  prisoner  could  do.  It 
was  a verdict  founded  on  such  evidence  as  could  be  hastily  collected 
in  a community  where  it  required  moral  courage  to  testify  for  the 
accused.  Testimony  was  excluded  upon  frivolous  and  unjust  pre- 
tenses. The  cause  was  submitted  to  the  jury  on  the  fourth  of 
July,  and  under  circumstances  calculated  to  convey  a malicious 
and  unjust  spirit  into  the  jury  box.  It  was  a strange  celebration. 
The  dawn  of  the  day  of  independence  was  not  greeted  with  can- 
non or  bells.  No  lengthened  procession  was  seen  in  our  streets. 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


157 


nor  were  the  voices  of  orators  heard  in  our  public  halls.  An  in- 
tense excitement  brought  a vast  multitude  here,  complaining  of  the 
delay  and  the  expense  of  what  was  deemed  an  unnecessary  trial, 
and  demanding  the  sacrifice  of  a victim  who  had  been  spared  too 
long  already.  For  hours  that  assemblage  was  roused  and  excited 
by  denunciations  of  the  prisoner,  and  ridicule  of  his  deafness,  his 
ignorance,  and  his  imbecility.  Before  the  jury  retired,  the  Court 
was  informed  that  they  were  ready  to  render  the  verdict  required. 
One  juror,  however,  hesitated.  The  next  day  was  the  Sabbath. 
The  jury  were  called,  and  the  Court  remonstrated  with  the  dissen- 
tient, and  pressed  the  necessity  of  a verdict.  That  juror  gave  way 
at  last,  and  the  bell  which  summoned  our  citizens  to  church  for  the 
evening  service  was  the  signal  for  the  discharge  of  the  jury,  be- 
cause they  had  agreed.  Even  thus  a legal  verdict  could  not  be  ex- 
torted. The  eleven  jurors,  doubtless  under  an  intimation  from 
the  Court,  compromised  with  the  twelfth,  and  a verdict  was  ren- 
dered, not  in  the  language  of  the  law,  that  the  prisoner  was  “ not 
insane,”  but  that  he  was  “ sufficiently  sane,  in  mind  and  memory, 
to  distinguish  between  right  and  wrong;”  a verdict  which  implied 
that  the  prisoner  was  at  least  partially  insane,  was  diseased  in  other 
faculties  besides  the  memory,  and  partially  diseased  in  that,  and 
that,  although  he  had  mind  and  memory  to  distinguish  between 
right  and  wrong  in  the  abstract,  he  had  not  reason  and  under- 
standing and  will  to  regulate  his  conduct  according  to  that  distinc- 
tion; in  short,  a verdict  by  which  the  jury  unworthily  evaded  the 
question  submitted  to  them,  and  cast  upon  the  Court  a responsi- 
bility which  it  had  no  right  to  assume,  but  which  it  did  neverthe- 
less assume,  in  violation  of  the  law.  That  twelfth  juror  was  after- 
wards drawn  as  a juror  in  this  cause,  and  was  challenged  by  the 
counsel  for  the  people  for  partiality  to  the  prisoner,  and  the  chal- 
lenge was  sustained  by  the  Court,  because — although  he  had,  as  the 
Court  says,  pronounced  by  his  verdict  that  the  prisoner  was  sane — 
he  then  declared  that  he  believed  the  prisoner  insane,  and  would  die 
in  the  jury  box  before  he  would  render  a verdict  that  he  was  sane. 
Last  and  chief  of  all  objections  to  that  verdict  now,  it  has  been 
neither  pleaded  nor  proved  here,  and  therefore,  is  not  in  evidence 
before  you.  I trust,  then,  that  you  will  dismiss,  to  the  contempt 
of  mankind  that  jury  and  their  verdict,  thus  equivocating  upon 
law  and  science,  health  and  disease,  crime  and  innocence. 


158 


SPEECH  OF  WILLIAM  H.  SEWARD 


4.  The  standard  of  intelligence  by  which  the  prisoner 

MUST  BE  JUDGED. 

Again.  An  inferior  standard  of  intelligence  has  been  set  up 
here  as  the  standard  of  the  negro  race,  and  a false  one  as  to  the 
standard  of  the  Asiatic  race.  The  prisoner  traces  a divided  line- 
age. On  the  paternal  side  his  ancestry  is  lost  among  the  tiger 
hunters  on  the  gold  coast  of  Africa,  while  his  mother  constitutes  a 
portion  of  the  small  remnant  of  the  Narragansett  tribe.  Hence,  it 
is  held,  that  the  prisoner’s  intellect  is  to  be  compared  with  the 
depreciating  standard  of  the  African,  and  his  passions  with  the 
violent  and  ferocious  character  erroneously  imputed  to  the 
aborigines.  Indications  of  manifest  derangement,  or  at  least  of 
imbecility,  approaching  to  idiocy,  are  therefore  set  aside,  on  the 
ground  that  they  harmonize  with  the  legitimate  but  degraded 
characteristics  of  the  races  from  which  he  is  descended.  You, 
gentlemen,  have,  or  ought  to  have,  lifted  up  your  souls  above  the 
bondage  of  prejudices  so  narrow  and  so  mean  as  these.  The  color 
of  the  prisoner’s  skin  and  the  form  of  his  features  are  not  im- 
pressed upon  the  spiritual,  immortal  mind  which  works  beneath. 
In  spite  of  human  pride,  he  is  still  your  brother,  and  mine,  in  form 
and  color  accepted  and  approved  by  his  Father,  and  yours,  and 
mine,  and  bears  equally  with  us  the  proudest  inheritance  of  our 
race — the  image  of  our  Maker.  Hold  him  then  to  be  a man. 
Exact  of  him  all  the  responsibilities  which  should  be  exacted  under 
like  circumstances  if  he  belonged  to  the  Anglo-Saxon  race,  and 
make  for  him  all  the  allowances  which,  under  like  circumstances, 
you  would  expect  for  yourselves. 

5.  Insanity,  though  often  counterfeited,  is  a perfect 

DEFENSE. How  THE  TRUTH  OF  THE  PLEA  MAY  BE  TESTED. 

The  prisoner  was  obliged — no,  his  counsel  were  obliged,  by  law, 
to  accept  the  plea  of  not  guilty^  which  the  Court  directed  to  be  en- 
tered in  his  behalf.  That  plea  denies  the  homicide.  If  the  law 
had  allowed  it,  we  would  gladly  have  admitted  all  the  murders  of 
which  the  prisoner  was  accused,  and  have  admitted  them  to  be  as 
unprovoked  as  they  were  cruel,  and  have  gone  directly  before  you 
on  the  only  defense  upon  which  we  have  insisted,  or  shall  insist,  or 
could  insist,  that  he  is  irresponsible,  because  he  was  and  is  insane. 

We  labor,  not  only  under  these  difficulties,  but  under  the  fur- 
ther embarrassment  tnat  the  plea  of  insanity  is  universally  sus- 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


159 


pected  It  is  the  last  subterfuge  of  the  guilty,  and  so,  is  too  often 
abused.  But,  however  obnoxious  to  suspicion  this  defense  is, 
there  have  been  cases  where  it  was  true;  and  when  true,  it  is,  of  all 
pleas,  the  most  perfect  and  complete  defense  that  can  be  offered  in 
any  human  tribunal.  Our  Saviour  forgave  his  judges  because  “they 
knew  not  what  they  did.”  The  insane  man  who  has  committed  a 
crime  knew  not  what  he  did.  If  this  being,  dyed  with  human 
blood,  be  insane,  you  and  I,  and  even  the  children  of  our  affec- 
tions, are  not  more  guiltless  than  he. 

Is  there  reason  to  indulge  a suspicion  of  fraud  here  ? Look  at 
this  stupid,  senseless  fool,  almost  as  inanimate  as  the  clay  moulded 
in  the  brick-yard,  and  say,  if  you  dare,  that  you  are  afraid  of  being 
deceived  by  him.  Look  at  me.  You  all  know  me.  Am  I a man 
to  engage  in  a conspiracy  to  deceive  you  and  defraud  justice  ? 
Look  on  us  all,  for  although  I began  the  defense  of  this  cause 
alone,  thanks  to  the  generosity,  to  the  magnanimity  of  an  enlight- 
ened profession,  I come  out  strong  in  the  assistance  of  counsel 
never  before  attached  to  me  in  any  relation,  but  strongly  grappled 
to  me  now,  by  these  new  and  endearing  ties.  Is  any  one  of  us  a 
man  to  be  suspected  ? The  testimony  is  closed.  Look  through  it 
all.  Can  suspicion  or  malice  find  in  it  any  ground  to  accuse  us  of 
a plot  to  set  up  a false  and  fabricated  defense  ? I will  give  you, 
gentlemen,  a key  to  every  case  where  insanity  has  been  wrongfully 
and  yet  successfully  maintained.  Gold,  influence,  popular  favor, 
popular  sympathy,  raise  that  defense  and  make  it  impregnable. 
But  you  have  never  seen  a poor,  worthless,  spiritless,  degraded 
negro  like  this  acquitted  wrongfully.  I wish  this  trial  may  prove 
that  such  an  one  can  be  acquitted  rightfully.  The  danger  lies 
here.  There  is  not  a white'  man  or  white  woman  who  would  not 
have  been  dismissed  long  since  from  the  perils  of  such  a prosecu- 
tion, if  it  had  only  been  proved  that  the  offender  was  so  ignorant 
and  so  brutalized  as  not  to  understand  that  the  defense  of  insanity 
had  been  interposed. 

If  he  feign,  who  has  trained  the  idiot  to  perform  this  highest 
and  most  difficult  of  all  intellectual  achievements  ? Is  it  I ? 
Shakspeare  and  Cervantes  only,  of  all  mankind,  have  conceived 
and  perfected  a counterfeit  of  insanity.  Is  it  I ? Why  is  not  the 
imposition  exposed,  to  my  discomfiture  and  the  prisoner’s  ruin  ? 
Where  was  it  done  ? Was  it  in  public,  here  ? Was  it  in  secret,  in 
the  jail?  His  deafened  ears  could  not  hear  me  there,  unless  I 
were  overheard  by  other  prisoners,  by  jailers,  constables,  the  sher- 


160 


SPEECH  OF  WILLIAM  II.  SEWARD 


iff,  and  a cloud  of  witnesses.  Who  has  the  keys  of  the  jail  ? Have 
I?  You  have  had  sheriff,  jailer,  and  the  whole  police  upon  the 
stand.  Could  none  of  these  witnesses  reveal  our  plot  ? Were  there 
none  to  watch  and  report  the  abuse  ? When  they  tell  you,  or  in- 
sinuate, gentlemen,  that  this  man  has  been  taught  to  feign  insanity, 
they  discredit  themselves,  as  did  the  Roman  sentinels,  who,  ap- 
pointed to  guard  the  sepulchre  of  our  Saviour,  said,  in  excuse  of  the 
broken  seal,  that  while  they  slept  men  came  and  rolled  away  the 
stone. 

6.  Relations  of  the  law  towards  the  insane. — Review 
OF  Kleim’s  case. 

I advance  towards  the  merits  of  the  cause.  The  law  which  it 
involves  will  be  found  in  the  case  of  Kleim,  tried  for  murder  in 
1844,  before  Judge  Edmonds,  of  the  first  circuit,  in  the  city  of 
New  York,  reported  in  the  Journal  of  Insanity  for  January,  1846, 
at  page  261.  I read  from  the  report  of  the  judge’s  charge: 

“ He  told  the  jury  that  there  was  no  doubt  that  Kleim  had  been 
guilty  of  the  killing  imputed  to  him,  and  that  under  circumstances 
of  atrocity  and  deliberation  which  were  calculated  to  excite  in  their 
minds  strong  feelings  of  indignation  against  him.  But  they  must 
beware  how  they  permitted  such  feelings  to  influence  their  judg- 
ment. They  must  bear  in  mind  that  the  object  of  punishment  was 
not  vengeance,  but  reformation;  not  to  extort  from  a man  an 
atonement  for  the  life  which  he  cannot  give,  but  by  the  terror  of 
the  example,  to  deter  others  from  the  like  offenses,  and  that 
nothing  was  so  likely  to  destroy  the  public  confidence  in  the  ad- 
ministration of  criminal  justice,  as  the  infliction  of  its  pains  upon 
one  whom  Heaven  has  already  afflicted  with  the  awful  malady  of 
insanity.” 

These  words  deserve  to  be  written  in  letters  of  gold  upon  tab- 
lets of  marble.  Their  reason  and  philosophy  are  apparent.  If 
you  send  the  lunatic  to  the  gallows,  society  will  be  shocked  by 
your  inhumanity,  and  the  advocates  for  the  abolition  of  capital 
punishment  will  find  their  most  effective  argument  in  the  fact  that 
a jury  of  the  country,  through  ignorance,  or  passion,  or  prejudice, 
have  mistaken  a madman  for  a criminal. 

The  report  of  Judge  Edmonds’  charge  proceeds:  “ It  was  true 
that  the  plea  of  insanity  was  sometimes  adopted  as  a cloak  for 
crime,  yet  it  was  unfortunately  equally  true,  that  many  more  per- 
sons were  unjustly  convicted,  to  whom  their  unquestioned  insanity 


IX  DEFENSE  OF  WILLIAM  FREEMAN. 


161 


ought  to  have  been  an  unfailing  protection.”  This  judicial  answer 
to  the  argument  that  jurors  are  too  likely  to  be  swayed  by  the  plea 
of  insanity,  is  perfect  and  complete.  Judge  Edmonds  further 
charged  the  jury,  “ that  it  was  by  no  means  an  easy  matter  to  dis- 
cover or  define  the  line  of  demarkation  where  sanity  ended  and 
insanity  began,”  and  that  it  was  often  difficult  for  those  most  ex- 
pert in  the  disease  to  detect  or  explain  its  beginning,  extent  or 
duration;  that  the  classifications  of  the  disease  were  in  a great 
measure  arbitrary,  and  the  jury  were  not  obliged  to  bring  the  case 
of  the  prisoner  within  any  one  of  the  classes,  because  the  symptoms 
of  the  different  kinds  were  continually  mingling  with  each  other.” 
The  application  of  this  rule  will  render  the  present  case  per- 
fectly clear,  because  it  appears  from  the  evidence  that  the  prisoner 
is  laboring  under  a combination  of  mania  or  excited  madness,  with 
dementia  or  decay  of  the  mind.  Judge  Edmonds  furnishes  you 
with  a balance  to  weigh  the  testimony  in  the  case  in  these  words: 
‘ It  was  important  that  the  jury  should  understand  how  much 
weight  was  to  be  given  to  the  opinions  of  medical  witnesses.  The 
opinions  of  men  who  had  devoted  themselves  to  the  study  of 
insanity  as  a distinct  department  of  medical  science,  and  studied 
recent  improvements  and  discoveries,  especially  when  to  that 
knowledge  they  added  the  experience  of  personal  care  of  the  in- 
sane, could  never  be  safely  disregarded  by  courts  and  juries;  and, 
on  the  other  hand,  the  opinions  of  physicians  who  had  devoted 
their  particular  attention  to  disease  were  not  of  any  more  value 
than  the  opinions  of  common  persons.” 

This  charge  of  Judge  Edmonds  furnishes  a lamp  to  guide  your 
feet,  and  throws  a blazing  light  on  your  path.  He  acknowledges, 
in  the  first  place,  with  distinguished  independence  for  a judge  and 
a lawyer,  that  “ the  law,  in  its  slow  and  cautious  progress,  still  lags 
far  behind  the  advance  of  true  knowledge.  An  insane  person  is 
one  who,  at  the  time  of  committing  the  act,  labored  under  such  a 
defect  of  reason  as  not  to  know  the  nature  and  quality  of  the  act 
he  was  doing,  or  if  he  did  know  it,  did  not  know  he  was  doing 
what  was  wrong;  and  the  question  is  not  whether  the  accused 
knew  the  difference  between  right  and  wrong  generally^  but  whether 
he  knew  the  difference  between  right  and  wrong  in  regard  to  the 
very  act  with  which  he  is  charged.  If  some  controlling  disease 
was,  in  truth,  the  acting  power  within  him,  which  he  could  not 
resist,  or  if  he  had  not  a sufficient  use  of  his  reason  to  control  the 
oassions  which  prompted  him,  he  is  not  responsible.  But  it  must 
11 


162 


SPEECH  OF  WILLIAM  H.  SEWARD 


be  an  absolute  dispossession  of  the  free  and  natural  agency  of  the 
mind.  In  the  glowing  but  just  language  of  Erskine,  it  is  not 
necessary  that  reason  should  be  hurled  from  her  seat;  it  is  enough 
that  distraction  sits  down  beside  her,  holds  her  trembling  in  her 
place,  and  frightens  her  from  her  propriety.” 

Judge  Edmonds  proceeded:  “And  it  must  be  borne  in  mind 
that  the  moral  as  well  as  intellectual  faculties  may  be  so  disordered 
by  the  disease  as  to  deprive  the  mind  of  its  controlling  and  direct- 
ing pov/er.  In  order  then,  to  establish  a crime,  a man  must  have 
memory  and  intelligence  to  know  that  the  act  he  is  about  to  com- 
mit is  wrong;  to  remember  and  understand,  that  if  he  commit  the 
act  he  will  be  subject  to  punishment;  and  reason  and  will  to  en- 
able him  to  compare  and  choose  between  the  supposed  advantage 
or  gratification  to  be  obtained  by  the  criminal  act,  and  the  im- 
munity from  punishment  which  he  will  secure  by  abstaining  from 
it.  If,  on  the  other  hand,  he  have  not  intelligence  enough 
to  have  a criminal  intent  and  purpose,  and  if  his  moral  or 
intellectual  powers  are  either  so  deficient  that  he  has  not  suffi- 
cient will,  conscience  or  controlling  mental  power,  or  if,  through 
the  overwhelming  violence  of  mental  disease,  his  intellectual 
power  is  for  the  time  obliterated,  he  is  not  a responsible  moral 
agent.”  The  learned  judge  recommended  to  the  jury,  “as  aids 
to  a just  conclusion,  to  consider  the  extraordinary  and  unac- 
countable alteration  in  the  prisoner’s  whole  mode  of  life;  the  in- 
adequacy between  the  slightness  of  the  cause  and  the  magnitude  of 
the  offense;  the  recluse  and  ascetic  life  which  he  has  led;  his  invin- 
cible repugnance  to  all  intercourse  with  his  fellow  creatures;  his 
behavior  and  conduct  at  the  time  the  act  was  done,  and  subse- 
quently during  his  confinement;  and  the  stolid  indifference  which 
he  alone  had  manifested  during  the  whole  progress  of  a trial  upon 
which  his  life  or  death  depended.” 

Kleim  was  acquitted  and  sent,  according  to  law,  to  the  State 
Lunatic  Asylum  at  Utica.  The  superintendent  of  the  asylum,  in 
a note  to  this  report,  states  that  Kleim  is  uniformly  mild  and 
pleasant;  has  not  asked  a question,  or  spoken  or  learned  the  name 
of  any  one;  seems  very  imperfectly  to  recollect  the  murder  or  the 
trial;  says  he  was  put  in  prison;  does  not  know  what  for;  and  was 
taken  to  the  court,  but  had  no  trial;  that  his  bodily  health  is  good, 
but  that  his  mind  is  nearly  gone — quite  demented. 

You  cannot  fail,  gentlemen  of  the  jury,  to  remark  the  extraordi- 
nary similarity  between  the  case  of  Kleim,  as  indicated  in  the 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


163 


charge  of  Judge  Edmonds,  and  that  of  the  prisoner  at  the  bar.  If. 
I were  sure  you  would  receive  such  a charge,  and  be  • guided  by  it, 
I might  rest  here,  and  defy  the  eloquence  of  the  attorney-general. 
The  proof  of  insanity  in  this  case  is  of  the  same  nature,  and  the 
disease  in  the  same  form  as  in  the  case  of  Kleim.  The  only  differ- 
ence is,  that  the  evidence  here  is  a thousand  times  more  conclusive. 
But  Judge  Edmonds  does  not  preside  here.  Kleim  was  a white 
man.  Freeman  is  a negro.  Kleim  set  fire  to  a house,  to  burn  only 
a poor  obscure  woman  and  her  child.  Here  the  madman  destroyed 
a whole  family,  rich,  powerful,  honored,  respected  and  beloved. 
Kleim  was  tried  in  the  city  of  New  York,  and  the  community  en- 
gaged in  their  multiplied  avocations,  and  heedless  of  a crime  not 
infrequent  there,  and  occurring  in  humble  life,  did  not  over- 
awe and  intimidate  the  Court,  the  jury,  or  the  witnesses.  Here 
a panic  has  paralyzed  humanity.  No  man  or  woman  feels  safe 
until  the  maniac  shall  be  extirpated  from  the  face  of  the  earth. 
Kleim  had  the  sympathies  of  men  and  women,  willing  witnesses, 
advocates  sustained  and  encouraged  by  popular  favor,  and  an 
impartial  jury.  Freeman  is  already  condemned  by  the  tribunal 
of  public  opinion,  and  has  reluctant  and  timorous  witnesses, 
counsel  laboring  under  embarrassments  plainly  to  be  seen,  and  a 
jury  whose  impartiality  is  yet  to  be  proved. 

7.  Public  security  does  not  require  the  sacrifice  of  the 

PRISONER. 

The  might  that  slumbered  in  this  maniac’s  arm  was  exhausted 
in  the  paroxysm  which  impelled  him  to  his  dreadful  deeds.  Yet, 
an  excited  community,  whose  terror  has  not  yet  culminated,  de- 
clare, that  whether  sane  or  insane,  he  must  be  executed,  to  give 
safety  to  your  dwellings  and  theirs.  I must  needs  then  tell  you  the 
law,  which  will  disarm  such  cowardly  fear.  If  you  acquit  the 
prisoner,  he  cannot  go  at  large,  but  must  be  committed  to  jail,  to 
be  tried  by  another  jury,  for  a second  murder.  Your  dwellings, 
therefore,  will  be  safe.  If  such  a jury  find  him  sane,  he  will  then  be 
sent  to  his  fearful  account,  and  your  dwellings  will  be  safe.  If  ac- 
quitted, he  will  be  remanded  to  jail,  to  await  a third  trial,  and  your 
dwellings  will  be  safe.  If  that  jury  convict,  he  will  then  be  execu- 
ted, and  your  dwellings  will  be  safe.  If  they  acquit,  he  will  still  be 
detained,  to  answer  a fourth  murder,  and  your  dwellings  will  be 
safe.  Whether  the  fourth  jury  acquit  or  convict,  your  dwellings 
will  still  be  safe;  for,  if  they  convict,  he  will  then  be  cut  off,  and  if 


164 


SPEECH  OF  WILLIAM  H.  SEWARD 


they  acquit,  he  must,  according  to  the  law  of  the  land,  be  sent  to 
the  lunatic  asylum,  there  to  be  confined  for  life.  You  may  not  slay 
him  then  for  the  public  security,  because  the  public  security  does 
not  demand  the  sacrifice.  No  security,  for  home  or  hearth,  can  be 
obtained  by  judicial  murder.  God  will  abandon  him,  who,  through 
cowardly  fear,  becomes  such  a murderer.  I also  stand  for  the 
security  of  the  homes  and  hearths  of  my  fellow  citizens,  and  have 
as  deep  an  interest,  and  as  deep  a stake  as  any  one  of  them.  There 
are  my  home  and  hearth  exposed  to  every  danger  that  can  threaten 
theirs,  but  I know  that  security  cannot  exist  for  any,  if  feeble  man 
undertakes  to  correct  the  decrees  of  Providence. 

8.  Difficulty  of  detecting  insanity. — The  human  mind 

INCAPABLE  OF  COMPLETE  OBLITERATION. 

The  counsel  for  the  people  admit,  in  the  abstract,  that  insanity 
excuses  crime,  but  they  insist  on  rules  for  the  regulation  of  insanity, 
to  which  that  disease  can  never  conform  itself.  Dr.  Fosgate  testi- 
fied that  the  prisoner  was  insane.  He  was  asked  by  the  attorney- 
general,  “what  if  the  law,  nevertheless,  hold  to  be  criminal  that  same 
state  of  mind  which  you  pronounce  insanity  ? ” He  answered  with 
high  intelligence  and  great  moral  firmness,  “ The  law  cannot  alter 
the  constitution  of  man  as  it  was  given  him  by  his  Maker.”  In- 
sanity, such  as  the  counsel  for  the  people  would  tolerate,  never  did 
and  never  will  exist.  They  bring  its  definition  from  Coke,  Black- 
stone  and  Hale,  and  it  requires  that  by  reason  either  of  natural 
infirmity  or  of  disease,  the  wretched  subject  shall  be  unable  to 
count  twenty,  shall  not  know  his  father  or  mother,  and  shall  have 
no  more  reason  or  thought  than  a brute  beast. 

According  to  the  testimony  of  Dr.  Spencer,  and  the  claim  of 
the  attorney-general,  an  individual  is  not  insane  if  you  find  any 
traces  or  glimmerings  of  the  several  faculties  of  the  human  mind, 
or  of  the  more  important  ones.  Dr.  Spencer  has  found  in  the 
prisoner  memory  of  his  wrongs  and  sufferings,  choice  between 
bread  and  animal  food,  hunger  to  be  appeased,  thirst  to  be 
quenched,  love  of  combat,  imperfect  knowledge  of  money,  anger 
and  malice.  All  of  Dr.  Spencer’s  questions  to  the  accused  show, 
that  in  looking  for  insanity,  he  demands  an  entire  obliteration  of 
all  conception,  attention,  imagination,  association,  memory,  under- 
standing and  reason,  and  everything  else.  There  never  was  an 
idiot  so  low,  never  a diseased  man  so  demented. 

You  might  as  well  expect  to  find  a man  born  without  eyes,  ears, 
nose,  mouth,  hands  and  feet,  or  deprived  of  them  all  by  disease, 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


165 


and  yet  surviving,  as  to  find  such  an  idiot,  or  such  a lunatic,  as  the 
counsel  for  the  people  would  hold  irresponsible.  The  reason  is, 
that  the  human  mind  is  not  capable,  while  life  remains,  of  such 
complete  obliteration.  What  is  the  human  mind  ? It  is  immaterial, 
spiritual,  immortal;  an  emanation  of  the  divine  intelligence,  and  if 
the  frame  in  which  it  dwells  had  preserved  its  just  and  natural  pro- 
portions, and  perfect  adaptation,  it  would  be  a pure  and  heavenly 
existence.  But  that  frame  is  marred  and  disordered  in  its  best 
estate.  The  spirit  has  communication  with  the  world  without,  and 
acquires  imperfect  knowledge  only  through  the  half-opened  gates 
of  the  senses.  If,  from  original  defects,  or  from  accidental  causes, 
the  structure  be  such  as  to  cramp  or  restrain  the  mind,  it  becomes 
or  appears  to  be  weak,  diseased,  vicious  and  wicked.  I know  one 
who  was  born  without  sight,  without  hearing,  and  without  speech, 
retaining  the  faculties  of  feeling  and  smell.  That  child  was,  and 
would  have  continued  to  be  an  idiot,  incapable  of  receiving  or  com- 
municating thoughts,  feelings  or  affections;  but  tenderness  unex- 
ampled, and  skill  and  assiduity  unparalleled,  have  opened  avenues 
to  the  benighted  mind  of  Laura  Bridgman,  and  developed  it  into  a 
perfect  and  complete  human  spirit,  consciously  allied  to  all  its 
kindred,  and  aspiring  to  Heaven.  Such  is  the  mind  of  every  idiot, 
and  of  every  lunatic,  if  you  can  only  open  the  gates  and  restore  the 
avenues  of  the  senses;  and  such  is  the  human  soul  when  deranged 
and  disordered  by  disease,  imprisoned,  confounded,  benighted. 
That  disease  is  insanity. 

Doth  not  the  idiot  eat  ? Doth  not  the  idiot  drink  ? Doth  not 
the  idiot  know  his  father  and  his  mother  ? He  does  all  this  because 
he  is  a man.  Doth  he  not  smile  and  weep  ? and  think  you  he 
smiles  and  weeps  for  nothing  ? He  smiles  and  weeps  because  he  is 
moved  by  human  joys  and  sorrows,  and  exercises  his  reason,  how- 
ever imperfectly.  Hath  not  the  idiot  anger,  rage,  revenge?  Take 
from  him  his  food,  and  he  will  stamp  his  feet  and  throw  his  chains 
in  your  face.  Think  you  he  doth  this  for  nothing  ? He  does  it  all 
because  he  is  a man,  and  because,  however  imperfectly,  he  exer- 
cises his  reason.  The  lunatic  does  all  this,  and  if  not  quite  de- 
mented, all  things  else  that  man,  in  the  highest  pride  of  intellect, 
does  or  can  do.  He  only  does  them  in  a different  way.  You  may 
pass  laws  for  his  government.  Will  he  conform  ? Can  he  conform  ? 
What  cares  he  for  your  laws  ? He  will  not  even  plead;  he  cannot 
plead  his  disease  in  excuse.  You  must  interpose  the  plea  for  him, 
and  if  you  allow  it,  he,  when  redeemed  from  his  mental  bondage. 


166 


SPEECH  OF  WILLIAM  II.  SEWARD 


will  plead  for  you,  when  he  returns  to  your  Judge  and  his.  If  you 
deny  his  plea,  he  goes  all  the  sooner,  freed  from  imperfection,  and 
with  energies  restored,  into  the  presence  of  that  Judge.  You  must 
meet  him  there,  and  then,  no  longer  bewildered,  stricken  and  dumb, 
he  will  have  become  as  perfect,  clear  and  bright  as  those  who  re- 
viled him  in  his  degradation,  and  triumphed  in  his  ruin. 

9.  Insanity  defined. 

And  now  what  is  insanity  ? Many  learned  men  have  defined  it 
for  us,  but  I prefer  to  convey  my  idea  of  it  in  the  simplest  manner. 
Insanity  is  a disease  of  the  body,  and  I doubt  not,  of  the  brain. 
The  world  is  astonished  to  find  it  so.  They  thought  for  almost  six 
thousand  years,  that  it  was  an  affection  of  the  mind  only.  Is  it 
strange  that  the  discovery  should  have  been  made  so  late  ? You 
know  that  it  is  easier  to  move  a burden  upon  two  smooth  rails  on 
a level  surface  than  over  the  rugged  ground.  It  has  taken  almost  six 
thousand  years  to  learn  that.  But  moralists  argue  that  insanity 
shall  not  be  admitted  as  a physical  disease,  because  it  would  tend 
to  exempt  the  sufferer  from  responsibility,  and  because  it  would  ex- 
pose society  to  danger.  But  who  shall  know,  better  than  the 
Almighty,  the  ways  of  human  safety,  and  the  bonds  of  human 
responsibility  ? 

And  is  it  strange  that  the  brain  should  be  diseased  ? What 
organ,  member,  bone,  muscle,  sinew,  vessel  or  nerve  is  not  subject 
to  disease  ? What  is  a physical  man,  but  a frail,  perishing  body, 
that  begins  to  decay  as  soon  as  it  begins  to  exist  ? What  is  there 
of  animal  existence  here  on  earth  exempt  from  disease  and  decay  ? 
Nothing.  The  world  is  full  of  disease,  and  that  is  the  great  agent 
of  change,  renovation  and  health. 

And  what  wrong  or  error  can  there  be  in  supposing  that  the 
mind  may  be  so  affected  by  disease  of  the  body  as  to  relieve  man 
from  responsibility  ? You  will  answer  it  would  not  be  safe.  But 
who  has  assured  you  of  safety  ? Is  not  the  way  of  life  through 
dangers  lurking  on  every  side,  and  though  you  escape  ten  thousand 
perils  must  you  not  fall  at  last  ? Human  life  is  not  safe,  or  in- 
tended to  be  safe,  against  the  elements.  Neither  is  it  safe,  or  in- 
tended to  be  safe,  against  the  moral  elements  of  man’s  nature.  It 
is  not  safe  against  pestilence  or  against  war,  against  the  thunder- 
bolt of  Heaven,  or  against  the  blow  of  the  maniac.  Bat  compara- 
tive safety  can  be  secured,  if  you  will  be  wise.  You  can  guard 
against  war,  if  you  will  cultivate  peace.  You  can  guard  against 


DEFENSE  OF  WILLIAM  FREEMAN.  ItrT 

the  lightning,  if  you  will  learn  the  laws  of  electricity,  and  raise  the 
protecting  rod.  You  will  be  safe  against  the  maniac,  if  you  will 
watch  the  cause  of  madness,  and  remove  them.  Yet  after  all,  there 
will  be  danger  enough  from  all  these  causes  to  remind  you  that  on 
earth  you  are  not  immortal. 

Although  my  definition  would  not  perhaps  be  strictly  accurate, 
I should  pronounce  insanity  to  be  a derangement  of  the  mind,  char- 
acter and  conduct,  resulting  from  bodily  disease.  I take  this  word 
derangement,  because  it  is  one  in  common  every  day  use.  We  all 
understand  what  is  meant  when  it  is  said  that  anything  is  ranged 
or  arranged.  The  houses  on  a street  are  ranged,  if  built  upon  a 
straight  line.  The  fences  on  your  farms  are  ranged.  A tower,  if 
justly  built,  is  ranged;  that  is,  it  is  ranged  by  the  plummet.  It 
rises  in  a perpendicular  range  from  the  earth.  A file  of  men 
marching  in  a straight  line  are  in  range.  “ Range  yourselves,  men,” 
though  not  exactly  artistical,  is  not  an  uncommon  word  of  com- 
mand. Now  what  do  we  mean  when  we  use  the  word  ‘V^ranged 
Manifestly  that  a thing  is  not  ranged,  is  not  arranged,  is  out  of 
range.  If  the  houses  on  the  street  be  built  irregularly,  they  are  de- 
ranged. If  the  fences  be  inclined  to  the  right  or  left,  they  are  de- 
ranged. If  there  be  an  unequal  pressure  on  either  side,  the  tower 
will  lean,  that  is,  it  will  be  deranged.  If  the  file  of  men  become 
irregular,  the  line  is  deranged.  So  if  a man  be  insane.  There  was 
a regular  line  which  he  was  pursuing,  not  the  same  line  which  you 
or  I follow,  for  all  men  pursue  different  lines,  and  every  sane  man 
has  his  own  peculiar  path.  All  these  paths  are  straight,  and  all  are 
ranged,  though  all  divergent.  It  is  easy  enough  to  discover  when 
the  street,  the  fence,  the  tower,  or  the  martial  procession  is  de- 
ranged; but  it  is  quite  another  thing  to  determine  when  the  course 
of  an  individual  life  has  become  deranged.  We  deal  not  then  with 
geometrical  or  material  lines,  but  with  an  imaginary  line.  We  have 
no  physical  objects  for  land  marks.  We  trace  the  line  backw;ard 
by  the  light  of  imperfect  and  satisfactory  evidence,  which  leaves  it 
a matter  almost  of  speculation  whether  there  has  been  a departure 
or  not.  In  some  cases,  indeed,  the  task  is  easy.  If  the  fond 
mother  becomes  the  murderer  of  her  offspring,  it  is  easy  to  see  that 
she  is  deranged.  If  the  pious  man,  whose  steps  were  firm  and 
whose  pathway  led  straight  to  Heaven,  sinks  without  temptation 
into  criminal  debasement,  it  is  easy  to  see  that  he  is  deranged.  But 
in  cases  where  no  natural  instinct  or  elevated  principle  throws  its 


■ 168 


SPEECH  OF  WILLIAM  H.  SEWARD 


light  upon  our  research,  it  is  often  the  most  difficult  and  delicate  of 
all  human  investigations  to  determine  when  a person  is  deranged. 

We  have  two  tests.  Firsts  to  compare  the  individual  after  the 
supposed  derangement  with  himself  as  he  was  before.  Second,  to 
compare  his  course  with  those  ordinary  lines  of  human  life  which 
we  expect  sane  persons,  of  equal  intelligence  and  similarly  situated, 
to  pursue. 

If  derangement,  which*  is  insanity,  means  only  what  we  have  as- 
sumed, how  absurd  is  it  to  be  looking  to  detect  whether  memory, 
hope,  joy,  fear,  hunger,  thirst,  reason,  understanding,  wit,  and  other 
faculties  remain  ! So  long  as  life  lasts  they  never  cease  to  abide 
with  man,  whether  he  pursue  his  straight  and  natural  way,  or  the 
crooked  and  unnatural  course  of  the  lunatic.  If  he  be  diseased, 
his  faculties  will  not  cease  to  act.  They  will  only  act  differently. 
It  is  contended  here  that  the  prisoner  is  not  deranged,  because  he 
performed  his  daily  task  in  the  State  prison,  and  his  occasional 
labor  afterwards;  because  he  grinds  his  knives,  fits  his  weapons, 
and  handles  the  file,  the  ax,  and  the  saw,  as  he  was  instructed,  and 
as  he  was  wont  to  do.  Now  the  lunatic  asylum  at  Utica  has  not  an 
idle  person  in  it,  except  the  victims  of  absolute  and  incurable  de- 
mentia, the  last  and  worst  stages  of  all  insanity.  Lunatics  are 
almost  the  busiest  people  in  the  world.  They  have  their  prototypes 
only  in  children.  One  lunatic  will  make  a garden,  another  drive 
the  plow,  another  gather  flowers.  One  writes  poetry,  another 
essays,  another  orations.  In  short,  lunatics  eat,  drink,  sleep,  work, 
fear,  love,  hate,  laugh,  weep,  mourn,  die.  They  do  all  things  that 
sane  men  do,  but  do  them  in  some  peculiar  way.  It  is  said,  hov/- 
ever,  that  this  prisoner  has  hatred  and  anger,  that  he  has  remem- 
bered his  wrongs,  and  nursed  and  cherished  revenge;  wherefore, 
he  cannot  be  insane.  Cowper,  a moralist  who  had  tasted  the  bit- 
ter cup  of  insanity,  reasoned  otherwise: 

“ But  violence  can  never  longer  sleep 

Than  human  passions  please.  In  ev’ry  heart 
Are  sown  the  sparks  that  kindle  fiery  war; 

Occasion  needs  but  fan  them  and  they  blaze, 

The  seeds  of  murder  in  the  breast  of  man.” 

Melancholy  springs  oftenest  from  recalling  and  brooding  over 
wrong  and  suffering.  Melancholy  is  the  first  stage  of  madness,  and 
it  is  only  recently  that  the  less  accurate  name  of  monomania  has 
been  substituted  in  the  place  of  melancholy.  Melancholy  is  the 
foster-mother  of  anger  and  revenge.  Until  1830,  our  statutory  defi- 


IX  DEFENSE  OF  WILLIAM  FREEMAN. 


169 


nition  of  lunatics  was  in  the  terms  ^'"disorderly  persons^  whOy  if  left 
at  large y 7night  eiidanger  the  lives  of  others."  Our  laws  now  regard 
them  as  tnerely  disorderly  and  dangerous,  and  society  acquiesces, 
unless  madness  rise  so  high  that  the  madman  slay  his  imaginary 
enemy,  and  then  he  is  pronounced  sane. 

The  prisoner  lived  with  Nathaniel  Lynch,  at  the  age  of  eight  or 
nine,  and  labored  occasionally  for  him  during  the  last  winter. 
Lynch  visited  him  in  the  jail,  and  asked  him  if  he  remembered 
him,  and  remembered  living  with  him.  The  prisoner  answered  yes. 
Lynch  asked  the  prisoner  whether  he  was  whipped  while  there,  and 
by  whom,  and  why.  From  his  answers  it  appeared  that  he  had 
been  whipped  by  his  mistress  for  playing  truant,  and  that  he 
climbed  a rough  board  fence  in  his  night  clothes  and  fled  to  his 
mother.  Upon  this  evidence,  the  learned  professor  from  Geneva 
College,  Dr,  Spencer,  builds  an  argument  that  the  prisoner  has  con- 
ception, sensation,  memory,  imagination,  and  association,  and  is 
most  competent  for  the  scaffold.  Now  here  are  some  verses  to 
which  I would  invite  the  doctor’s  attention: 

“ Shut  up  in  dreary  gloom,  like  convicts  are, 

In  company  of  murderers!  Oh,  wretched  fate! 

If  pity  e’er  extended  through  the  frame. 

Or  sympathy’s  sweet  cordial  touched  the  heart. 

Pity  the  wretched  maniac  who  knows  no  blame, 

Absorbed  in  sorrow,  where  darkness,  poverty,  and  every  curse  impart.” 

Here  is  evidence,  not  merely  of  memory  and  other  faculties,  but 
of  what  we  call  genius.  Yet  these  verses  are  a sad  effusion  of 
Thomas  Lloyd,  a man-slaying  maniac  in  Bedlam. 

lo.  Why  the  prisoner  could  not  possibly  simulate 

MADNESS. 

The  first  question  of  fact  here,  gentlemen,  as  in  every  case 
where  insanity  is  gravely  insisted  upon,  is  this:  Is  the  prisoner 
feigning  or  counterfeiting  insanity  ? What  kind  of  a man  is  he  ? 
A youth  of  twenty-three,  without  learning,  education  or  experience. 
Dr.  Spencer  raises  him  just  above  the  brute;  Dr.  Bigelow  exalts 
him  no  higher ; and  Dr.  Dimon  thinks  that  he  has  intellectual 
capacity  not  exceeding  that  of  a child  of  ten  years,  with  the  knowl- 
edge of  one  of  two  or  three.  These  are  the  people’s  witnesses. 
All  the  witnesses  concur  in  these  estimates  of  his  mind. 

Can  you  conceive  of  such  a creature  comprehending  such  a 
plot,  and  standing  up  in  his  cell  in  the  jail,  hour  after  hour,  day 


170 


SPEECH  OF  WILLIAM  H.  SEWARD 


after  day,  week  after  week,  and  month  after  month,  carrying  on 
such  a fraud;  and  all  the  while  pouring  freely  into  the  ears  of  in- 
quisitors curious,  inquisitors  friendly,  and  inquisitors  hostile,  with- 
out discrimination  or  alarm,  or  apparent  hesitation  or  suspicion, 
with  “ child-like  simplicity,”  as  our  witnesses  describe  it,  and  with 
“ entire  docility,”  as  it  is  described  by  the  witnesses  for  the  people, 
confessions  of  crime  which,  if  they  fail  to  be  received  as  evidences 
of  insanity,  must  constitute  an  insurmountable  barrier  to  his 
acquittal  ? 

I am  ashamed  for  men  who,  without  evidence  of  the  prisoner’s 
dissimulation,  and  in  oppcs'tion  to  the  unanimous  testimony  of  all 
the  witnesses,  that  he  is  sincere,  still  think  that  this  poor  fool  may 
deceive  them.  If  he  could  feign,  and  were  feigning,  would  he  not 
want  some  counsel,  some  friend,  if  not  to  advise  and  assist,  at  least 
to  inform  him  of  the  probable  success  of  the  fraud  ? And  yet  no 
one  of  his  counsel  or  witnesses  has  ever  conversed  with  him,  but 
in  a crowd  of  adverse  witnesses;  and  for  myself,  I have  not  spoken 
with  him*in  almost  two  months,  and  during  the  same  period,  have 
never  looked  upon  him  elsewhere  than  here,  in  the  presence  of  the 
Court  and  the  multitude.  Would  a sane  man  hold  nothing  back? 
admit  everything  ? to  everybody  ? affect  no  ignorance  ? no  forget- 
fulness ? no  bewilderment  ? no  confusion  ? no  excitement  ? no 
delirium  ? 

Dr.  Ray,  in  his  Treatise  on  the  Medical  Jurisprudence  of 
Insanity,  p.  333,  gives  us  very  different  ideas  from  all  this,  of  those 
who  can  feign,  and  of  the  manner  of  counterfeiting:  ^‘A  person 
who  has  not  made  the  insane  a , subject  of  study,  cannot  simulate 
madness,  so  as  to  deceive  a physician  well  acquainted  with  the 
disease.  Mr.  Haslam  declares,  that  ‘ to  sustain  the  character  of  a 
paroxysm  of  active  insanity,  would  require  a continuity  of  exertion 
beyond  the  power  of  a sane  person.’  Dr.  Conolly  affirms,  that  he 
can  hardly  imagine  a case  which  would  be  proof  against  an  efficient 
system  of  observation.  The  grand  fault  committed  by  impostors  is 
that  they  overdo  the  character  they  assume.  The  really  mad,  ex- 
cept in  the  acute  stage  of  the  disease,  are,  generally  speaking,  not 
readily  recognized  as  such  by  a stranger,  and  they  retain  so  much 
of  the  rational  as  to  require  an  effort  to  detect  the  impairment  of 
their  faculties.  Generally  speaking,  after  the  acute  stage  has 
passed  off,  a maniac  has  no  difficulty  in  remembering  his  friends 
and  acquaintances,  the  places  he  has  been  accustomed  to  frequent, 
names,  dates,  and  events,  and  the  occurrences  of  his  life.  The 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


in 


ordinary  relations  of  things  are,  with  some  exceptions,  as  easily  and 
clearly  perceived  as  ever,  and  his  discrimination  of  character  seems 
to  be  marked  by  his  usual  shrewdness A per- 

son simulating  mania  will  frequently  deny  all  knowledge  of  men 
and  things  with  whom  he  has  always  been  familiar.” 

And  now,  gentlemen,  I will  give  you  a proof  of  the  difference 
between  this  real  science  and  the  empiricism  upon  which  the  coun- 
sel for  the  people  rely  in  this  cause.  Jean  Pierre  was  brought  be- 
fore the  Court  of  Assizes  in  Paris,  in  1824,  accused  of  forgery, 
swindling,  and  incendiarism.  He  feigned  insanity.  A commission 
of  eminent  physicians  examined  him,  and  detected  his  imposture 
by  his  pretended  forgetfulness,  and  confusion  in  answering  inter- 
rogatories concerning  his  life  and  history.  The  most  prominent  of 
these  questions  are  set  down  in  the  books.  (Ray,  p.  338.)  I sub- 
mitted these  questions  and  answers,  with  a statement  of  Jean 
Pierre’s  case,  to  Dr.  Spencer,  and  he,  governed  by  the  rules  which 
have  controlled  him  in  the  present  cause,  pronounced  the  impostor’s 
answers  to  be  evidence  of  insanity,  because  they  showed  a decay 
of  memory. 

Again,  gentlemen,  look  at  the  various  catechisms  in  which  this 
prisoner  has  been  exercised  for  two  months,  as  a test  of  his  sanity. 
Would  any  sane  man  have  propounded  a solitary  one  of  all  those 
questions  to  any  person  whom  he  believed  to  be  of  sound  mind  ? 
Take  an  instance.  On  one  occasion.  Dr.  Willard,  a witness  for  the 
people,  having  exhausted  the  idiot’s  store  of  knowledge  and  emotion, 
expressed  a wish  to  discover  whether  the  passion  of  fear  had  burned 
out,  and  employing  Mr.  Morg^^n’s  voice  addressed  the  prisoner 
thus:  ‘‘  Bill,  they’re  going  to  talfe  you  out  to  kill  you.  They’re  go- 
ing to  take  you  out  to  kill  you.  Bill.”  The  poor  creature  answered 
nothing.  “What  do  you  think  of  it.  Bill?”  Answer:  “I  don’t 
think  about  it — I don’t  believe  it.”  “ Bill,”  continues  the  inquis- 
itor with  louder  and  more  terrific  vociferation,  “ they’re  going  to 
kill  you,  and  the  doctors  want  your  bones;  what  do  you  think  of  it, 
Bill?”  The  prisoner  answers:  “I  don’t  think  about  it — I don’t 
believe  it.”  The  doctor’s  case  was  almost  complete,  but  he  thought 
that  perhaps  the  prisoner’s  stupidity  might  arise  from  inability  to 
understand  the  question.  Therefore,  lifting  his  voice  still  higher, 
he  continues:  “Did  you  ever  see  the  doctors  have  any  bones? 
Did  you  ever  see  the  doctors  have  any  bones.  Bill  ? ” The  fool  an- 
swers, “I  have.”  “Then,  where  did  you  see  them.  Bill?”  “In 
Dr.  Pitney’s  office.”  And  thus,  by  this  dialogue,  the  sanity  of  the 


172 


SPEECH  OF  WILLIAM  H.  SEWARD 


accused  is,  in  the  judgment  of  Dr.  Willard,  completely  established. 
It  is  no  matter  that  if  the  prisoner  had  believed  the  threat,  his 
belief  would  have  proved  him  sane;  if  he  had  been  terrified,  his 
fears  would  have  sent  him  to  the  gallows;  if  he  had  forgotten  the 
fleshless  skeleton  he  had  seen,  he  would  have  been  convicted  of 
falsehood^  and  of  course  have  been  sane.  Of  such  staple  as  this  are 
all  the  questions  which  have  been  put  to  the  prisoner  by  all  the  wit- 
nesses. There  is  not  an  interrogatory  which  any  one  of  you  would 
have  put  to  a child  twelve  years  old. 

Does  the  prisoner  feign  insanity?  One  hundred  and  eight  wit- 
nesses have  been  examined,  of  whom  seventy-two  appeared  on  be- 
half of  the  people.  No  one  of  them  has  expressed  a belief  that  he 
was  simulating.  On  the  contrary,  every  witness  to  whom  the 
inquiry  has  been  addressed,  answers  that  the  sincerity  of  the  pris- 
oner is  beyond  question. 

Mr.  Seward  here  reviewed  the  testimony  of  the  witnesses  to  establish  the 
proposition  that  the  prisoner  could  not  feign,  and  never  attempted  to  simulate 
insanity.  He  then  continued  : 

I submit  to  you,  gentlemen  of  the  jury,  that  by  comparing  the 
prisoner  with  himself,  as  he  was  in  his  earlier,  and  as  he  is  in  his 
later  history,  I have  proved  to  you  conclusively  that  he  is  visibly 
changed  and  altered  in  mind,  manner,  conversation  and  action,  and 
that  all  his  faculties  have  become  disturbed,  impaired,  degraded 
and  debased.  I submit,  also,  that  it  is  proved:  First,  that  this 
change  occurred  between  the  sixteenth  and  the  eighteenth  years  of 
his  life,  in  the  State  prison,  and  that,  therefore,  the  change  thus  pal- 
pable was  not,  as  the  attorney-general  contends,  effected  by  mere 
lapse  of  time  and  increase  of  years,  hor  by  the  natural  development 
of  latent  dispositions;  Secondly,  that  inasmuch  as  the  convicts  in 
the  State  prison  are  absolutely  abstemious  from  intoxicating  drinks, 
the  change  was  not,  as  the  attorney-general  supposes,  produced  by 
intemperance. 

II.  Insanity  of  the  prisoner  demonstrated. — The  various 

CAUSES  OF  INSANITY  DISCUSSED. 

I have  thus  arrived  at  the  third  proposition  in  this  case,  which 
is,  that  the  prisoner  at  the  bar  is  insane.  This  I shall  demonstrate: 
First,  by  the  fact  already  so  fully  established,  that  the  prisoner  is 
changed;  Secondly,  by  referring  to  the  predisposing  causes  which 
might  be  expected  to  produce  insanity;  Thirdly,  by  the  incoher- 
ence and  extravagance  of  the  prisoner’s  conduct  and  eonversatioiL 
and  the  delusions  under  which  he  has  labored. 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


173 


And  now  as  to  the  predisposing  causes.  The  prisoner  was  born 
in  this  village,  twenty-three  years  ago,  of  parents  recently  emerged 
from  slavery.  His  mother  was  a women  of  violent  passions,  severe 
discipline,  and  addicted  to  intemperance.  His  father  died  of  delir- 
ium tremens,  leaving  his  children  to  the  neglect  of  the  world,  from 
which  he  had  learned  nothing  but  its  vices.  Hereditary  insanity  was 
added  to  the  prisoner’s  misfortunes,  already  sufficiently  compli- 
cated. His  aunt,  Jane  Brown,  died  a lunatic.  His  uncle,  Sidney 
Freeman,  is  an  acknowledged  lunatic. 

All  writers  agree,  what  it  needs  not  writers  to  teach,  that  neglect 
of  educatio7i  is  a fruitful  cause  of  crime.  If  neglect  of  education 
produces  crime,  it  equally  produces  insanity.  Here  was  a bright, 
cheerful,  happy  child,  destined  to  become  a member  of  the  social 
state,  entitled  by  the  principles  of  our  government  to  equal  advan- 
tages for  perfecting  himself  in  intelligence,  and  even  in  political 
rights,  with  each  of  the  three  millions  of  our  citizens,  and  blessed 
by  our  religion  with  equal  hopes.  Without  his  being  taught  to 
read,  his  mother,  who  lives  by  menial  service,  sends  him  forth  at 
the  age  of  eight  or  nine  years  to  like  employment.  Reproaches  are 
cast  on  his  mother,  on  Mr.  Warden,  and  on  Mr.  Lynch,  for  not 
sending  him  to  school,  but  these  reproaches  are  all  unjust.  How 
could  she,  poor  degraded  negress  and  Indian  as  she  was,  send  her 
child  to  school  ? And  where  was  the  school  to  which  Warden  and 
Lynch  should  have  sent  him  ? There  was  no  school  for  him.  His 
few  and  wretched  years  date  back  to  the  beginning  of  my  acquaint- 
ance here,  and  during  all  that  time,  with  unimportant  exceptions, 
there  has  been  no  school  here  for  children  of  his  caste.  A 
school  for  colored  children  was  never  established  here,  and  all 
the  common  schools  were  closed  against  them.  Money  would 
always  procure  instruction  for  my  children,  and  relieve  me  from  the 
responsibility.  But  the  colored  children,  who  have  from  time  to 
time  been  confided  to  my  charge,  have  been  cast  upon  my  own  care 
for  education.  When  I sent  them  to  school  with  my  own  children, 
they  were  sent  back  to  me  with  a message  that  they  must  be  with- 
drawn, because  they  were  black,  or  the  school  would  cease.  Here 
are  the  fruits  of  this  unmanly  and  criminal  prejudice.  A whole 
family  is  cut  off  in  the  midst  of  usefulness  and  honors  by  the  hand 
of  an  assassin.  You  may  avenge  the  crime,  but  whether  the  pris- 
oner be  insane  or  criminal,  there  is  a tribunal  where  this  neglect  will 
plead  powerfully  in  his  excuse,  and  trumpet-tongued  against  the 
“ deep  damnation  ” of  his  “ taking  off.” 


174 


SPEECH  OF  WILLIAM  H.  SEW^ARD 


Again.  The  prisoner  was  subjected,  in  tender  years,  to  severe 
and  undeserved  oppression.  Whipped  at  Lynch’s;  severely  and  un- 
lawfully beaten  by  Wellington,  for  the  venial  offense  of  forgetting 
to  return  a borrowed  umbrella;  hunted  by  the  police  on  charges 
of  petty  offenses,  of  which  he  was  proved  innocent;  finally  con- 
victed, upon  constructive  and  probably  perjured  evidence,  of  a 
crime  of  which  it  is  now  universally  admitted  he  was  guiltless,  he 
was  plunged  into  the  State  prison  at  the  age  of  sixteen,  instead  of 
being  committed  to  a House  of  Refuge. 

Mere  imprisonment  is  often  a cause  of  insanity.  Four  insane 
persons  have,  on  this  trial,  been  mentioned  as  residing  among  us, 
all  of  whom  became  insane  in  the  State  prison.  Authentic  statis- 
tics show  that  there  are  never  less  than  thirty  insane  persons  in 
each  of  our  two  great  penitentiaries.  In  the  State  prison  the  pris- 
oner was  subjected  to  severe  corporeal  punishment,  by  keepers  who 
mistook  a decay  of  mind  and  morbid  melancholy  for  idleness,  ob- 
stinacy and  malice.  Beaten,  as  he  was,  until  the  organs  of  his 
hearing  ceased  to  perform  their  functions,  who  shall  say  that  other 
and  more  important  organs  connected  with  the  action  of  his  mind, 
did  not  become  diseased  through  sympathy  ? Such  a life,  so  filled 
with  neglect,  injustice  and  severity,  with  anxiety,  pain,  disappoint- 
ment, solicitude  and  grief,  would  have  its  fitting  conclusion  in  a 
mad-house.  If  it  be  true,  as  the  wisest  of  inspired  writers  hath 
said,  ‘‘Verily  oppression  maketh  a wise  man  mad,”  what  may  we 
not  expect  it  to  do  with  a foolish,  ignorant,  illiterate  man  ! Thus 
it  is  explained  why,  when  he  came  out  of  prison,  he  was  so  dull, 
stupid,  morose;  excited  to  anger  by  petty  troubles,  small  in  our 
view,  but  mountains  in  his  way;  filled  in  his  waking  hours  with 
moody  recollections,  and  rising  at  midnight  to  sing  incoherent 
songs,  dance  without  music,  read  unintelligible  jargon,  and  combat 
with  imaginary  enemies. 

How  otherwise  than  on  the  score  of  madness  can  you  explain 
the  stupidity  which  caused  him  to  be  taken  for  a fool  at  Apple- 
gate’s, on  his  way  from  the  prison  to  his  home  ? How  else,  the 
ignorance  which  made  him  incapable  of  distinguishing  the  coin  which 
he  offered  at  the  hatter’s  shop  ? How  else,  his  ludicrous  apprehen- 
sions of  being  re-committed  to  the  State  prison  for  five  years,  for  the 
offense  of  breaking  his  dinner  knife  ? How  else,  his  odd  and 
strange  manner  of  accounting  for  his  deafness,  by  expressions,  all 
absurd  and  senseless,  and  varying  with  each  interrogator  : as  to 
John  De  Buy,  “that  Tyler  struck  him  across  the  ears  with  a plank, 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


175 


and  knocked  his  hearing  off,  and  that  it  never  came  back;  that 
they  put  salt  in  his  ear,  but  it  didn’t  do  any  good,  for  his  hearing 
was  gone — all  knocked  off”;  to  the  Rev.  John  M.  Austin,  “the 
stones  dropped  down  my  ears,  or  the  stones  of  my  ears  dropped 
down”;  to  Ethan  A.  Warden,  “got  stone  in  my  ear;  got  it  out; 
thought  I heard  better  when  I got  it  out  ”;  to  Dr.  Hermance,  “that 
his  ears  dropped  ”;  and  to  the  same  witness  on  another  occasion, 
“that  the  hearing  of  his  ears  fell  down  ”;  to  his  mother,  “that  his 
ear  had  fell  down  ”;  to  Deborah  De  Puy,  “ that  Tyler  struck  him  on 
the  head  with  a board,  and  it  seemed  as  if  the  sound  went  down  his 
throat”;  to  Dr.  Brigham,  “that  he  was  hurt  when  young,  it  made 
him  deaf  in  the  right  ear  ”;  also,  “ that  in  the  prison  he  was  struck 
with  a board  by  a man,  which  made  him  deaf”;  and  also,  “that  a 
stone  was  knocked  into,  or  out  of  his  ear  ” ? 

It  is  now  perfectly  certain,  from  the  testimony  of  Mr.  Van  Ars- 
dale  and  Helen  Holmes,  that  the  prisoner  first  stabbed  Mrs.  Van 
Nest,  in  the  back  yard,  and  then  entered  the  house  and  stabbed 
Mr.  Van  Nest,  who  fell  lifeless  at  the  instant  of  the  blow.  And  yet, 
sincerely  trying  to  give  an  account  of  the  dreadful  scenes,  exactly 
as  they  passed,  the  prisoner  has  invariably  stated,  in  his  answers  to 
every  witness,  that  he  entered  the  house,  stabbed  Van  Nest,  went 
into  the  yard,  and  then,  and  not  before,  killed  Mrs.  Van  Nest.  It 
was  in  this  order  that  he  related  the  transaction  to  Warren  T.  Wor- 
den, to  John  M.  Austin,  to  Ira  Curtis,  to  Ethan  A.  Warden,  to  Wil- 
liam P.  Smith,  to  Dr.  Van  Epps,  to  James  H.  Bostwick,  to  Dr. 
Brigham,  to  Nathaniel  Lynch,  to  Dr.  Willard,  to  Dr.  Bigelow,  and 
to  Dr.  Spencer.  How  else  than  on  the  score  of  madness  can  you 
explain  this  confusion  of  memory  ? and  if  the  prisoner  was  sane,  and 
telling  a falsehood,  what  was  the  motive  ? 

How  else  than  on  the  score  of  a demented  mind  will  you  ex- 
plain the  fact,  that  he  is  without  human  curiosity;  that  he  has 
never,  since  he  came  out  of  prison,  learned  a fact,  or  asked  a ques- 
tion ? He  has  been  visited  by  hundreds  in  his  cell,  by  faces  become 
familiar,  and  by  strangers,  by  fellow  prisoners,  by  jailers,  by  sheriff, 
by  counsel,  by  physician,  by  friends,  by  enemies,  and  by  relations, 
and  they  unanimously  bear  witness  that  he  has  never  asked  a ques- 
tion. The  oyster,  shut  up  within  its  limestone  walls,  is  as  inquisi- 
tive as  he. 

How  else  will  you  explain  the  mystery  that  he,  who  seven  years 
ago  had  the  capacity  to  relate  connectively  any  narrative,  however 
extended,  and  however  complex  in  its  details,  is  now  unable  to  con- 


176 


SPEECH  OF  WILLIAM  H.  SEWARD 


tinue  any  relations  of  the  most  recent  events,  without  the  prompting 
of  perpetual  interrogatories,  always  leading  him  by  known  land- 
marks; and  that  when  under  such  discipline  he  answers — he  em- 
ploys generally  the  easiest  forms — “ Yes,”  No,”  “ Don’t  know  ” ? 

Then  mark  the  confusion  of  his  memory,  manifested  by  contra- 
dictory replies  to  the  same  question.  Warren  T.  Worden  as‘ked 
him:  “Did  you  go  in  at  the  front  door?  Yes.  Did  you  go  in  at 
the  back  door?  Yes.  Were  you  in  the  hall  when  your  hand  was 
cut?  Yes.  Was  your  hand  cut  at  the  gate  ? Yes.  Did  you  stab 
Mrs.  Wyckoff  in  the  hall?  Yes.  Did  you  stab  Mrs.  Wyckoff  at 
the  gate?  Yes.  Did  you  go  out  at  the  back  door?  Yes.  Did 
you  go  out  at  the  front  door  ? Yes.” 

Ethan  A.  Warden  asked  him:  “What  made  you  kill  the  child?” 
“Don’t  know  any  thing  about  that.”  At  another  time  he  answered: 
“I  don’t  think  about  it;  I didn’t  know  it  was  a child.”  And  again, 
on  another  occasion:  “ Thought — feel  it  more;”  and  to  Dr.  Bigelow, 
and  other  witnesses,  who  put  the  question,  whether  he  was  not  sorry 
he  killed  the  child,  he  replied:  “ It  did  look  hard — I rather  it  was 
bigger.”  When  the  ignorance,  simplicity  and  sincerity  of  the  pris- 
oner are  admitted,  how  otherwise  than  on  the  ground  of  insanity 
can  you  explain  such  inconsistencies  as  these  ? 

The  testimony  of  Van  Arsdale  and  Helen  Holmes,  proves  that 
no  words  could  have  passed  between  the  prisoner  and  Van  Nest, 
except  these:  “ What  do  you  want  here  in  the  house  ? ” spoken  by 
Van  Nest  before  the  fatal  blow  was  struck.  Yet,  when  inquired  of 
by  Warren  T.  Worden  what  Van  Nest  said  to  him  when  he  entered 
the  house,  the  prisoner  said,  after  being  pressed  for  an  answer,  that 
Van  Nest  said  to  him:  “ If  you  eat  my  liver.  I’ll  eat  yours;  ” and 
he  at  various  times  repeated  to  the  witness  the  same  absurd  ex- 
pression. To  the  Rev.  John  M.  Austin  he  made  the  same  state- 
ment, that  Van  Nest  said:  “ If  you  eat  my  liver.  I’ll  eat  your  liver;’* 
to  Ira  Curtis  the  same;  to  Ethan  A.  Warden  the  same;  to  Lans- 
ingh  Briggs  the  same;  and  the  same  to  almost  every  other  witness. 
An  expression  so  absurd  under  the  circumstances,  could  never  have 
been  made  by  the  victim.  How  otherwise  can  it  be  explained  than 
as  the  vagary  of  a mind  shattered  and  crazed  ? 

The  prosecution,  confounded  with  such  evidence,  appealed  to 
Dr.  Spencer  for  relief.  He,  in  the  plentitude  of  his  learning,  says, 
that  he  had  read  of  an  ancient  and  barbarous  people,  who  used  to 
feast  upon  the  livers  of  their  enemies;  that  the  prisoner  has  not 
imagination  enough  to  have  invented  such  an  idea,  and  that  he 


IN  DEFENSE  OF  WILLIAM  FUEEMAN. 


17T 


must  somewhere  have  heard  the  tradition.  But  when  did  this  de- 
mented wretch,  who  reads  “ woman  ” for  “ admirable,”  and  “ cook” 
for  “Thompson,”  read  Livy  or  Tytler,  and  in  what  classical  circle 
has  he  learned  the  customs  of  the  ancients  ? Or,  what  perhaps  is 
more  pertinent,  who  were  that  ancient  and  barbarous  people,  and 
who  was  their  historian  ? 

Consider  now  the  prisoner’s  earnest  and  well-attested  sincerity 
in  believing  that  he  could  read,  when  either  he  never  had  acquired, 
or  else  had  lost,  the  power  of  reading.  The  Rev.  Mr.  Austin  vis- 
ited him  in  jail,  at  an  early  day,  asked  him  whether  he  could  read, 
and  being  answered  that  he  could,  gave  him  a testament.  In  fre- 
quent visits  afterwards,  when  the  prisoner  was  asked  whether  he 
had  read  his  testament,  he  answered,  “Yes,”  and  it  was  not  until 
after  the  lapse  of  two  months  that  it  was  discovered  that  he  was 
unable  to  spell  a monosyllable. 

Mr.  Seward  here  reviewed  the  testimony  to  show  that  the  prisoner  could  not 
read,  though  he  pretended  to  be  able  to  do  so,  and  claimed,  that  from  various 
other  circumstances  respecting  his  conduct,  it  had  been  clearly  established  that 
the  prisoner  was  hopelessly  demented.  He  showed  also  that  he  was  insensible 
to  corporal  pain  or  suffering.  He  then  referred  with  regret  to  the  fact  that  his 
offer  to  allow  the  jury,  personally,  to  examine  the  prisoner  had  been  rejected. 
He  continued  : 

I have  thus  shown  you,  gentlemen,  the  difficulties  which  attend- 
ed you  in  this  investigation,  the  law  concerning  insanity,  the  nature 
and  characteristics  of  that  disease,  the  great  change  which  the  pris- 
oner has  undergone,  and  some  of  those  marked  extravagances 
wdiich  denote  lunacy.  More  conclusive  evidence  yet  remains;  and 
firsty  the  delusion  by  which  the  prisoner  was  overpowered,  and 
under  whose  fearful  spell  his  crimes  were  committed. 

12.  Delusion,  when  shown,  incontestable  proof  of  insan- 
ity.— Illustrations  of  the  subject. 

Delusion  does  not  always  attend  insanity,  but  when  found  it  is 
the  most  unequivocal  of  all  proofs.  I have  already  observed,  that 
melancholy  is  the  first  stage  of  madness,  and  long  furnished  the 
name  for  insanity.  In  the  case  of  Hatfield,  who  fired  at  the  king 
in  Drury-Lane  Theatre,  Lord  Erskine,  his  counsel,  demonstrated 
that  insanity  did  not  consist  in  the  absence  of  any  of  the  intellectual 
faculties,  but  in  delusion;  and  that  an  offender  was  irresponsible,  if 
his  criminal  acts  were  the  immediate,  unqualified  offspring  of  such 
delusion.  Erskine  there  defined  a delusion  to  consist  in  deductions 

from  the  immovable  assumption  of  the  matters  as  realities^  either 
12 


178 


SPEECH  OF  WILLIMI  H.  SEWARD 


without  any  foundation  whatever,  or  so  distorted  and  disfigured  by 
fancy  as  to  be  nearly  the  same  thing  as  their  creation. 

The  learned  men  here  have  given  us  many  illustrations  of  such 
delusions;  as  that  of  the  man  who  believes  that  his  legs  are  of  glass, 
and  therefore  refuses  to  move,  for  fear  they  will  break;  of  the  man 
who  fancies  himself  the  king  of  the  French;  or  of  him  who  confides 
to  you  the  precious  secret  that  he  is  emperor  of  the  world.  These 
are  palpable  delusions,  but  there  are  others  equally,  or  even  more 
fatal  in  their  effects,  which  have  their  foundation  in  some  original 
fact,  and  are  thus  described  by  Dr.  Ray,  at  page  210  of  his  work: 
“ In  another  class  of  cases,  the  exciting  cause  of  homicidal  insanity 
is  of  a moral  nature,  operating  upon  some  peculiar  physical  predis- 
position, and  sometimes  followed  by  more  or  less  physical  disturb- 
ance. Instead  of  being  urged  by  a sudden  imperious  impulse  to 
kill,  the  subjects  of  this  form  of  the  affection,  after  suffering  for  a 
certain  period  much  gloom  of  mind  and  depression  of  spirits,  feel 
as  if  bound  by  a sense  of  necessity  to  destroy  life,  and  proceed  to 
the  fulfillment  of  their  destiny  with  the  utmost  calmness  and  delib- 
eration. So  reluctant  have  courts  and  juries  usually  been  to  re- 
ceive the  plea  of  insanity  in  defense  of  crime,  deliberately  planned 
and  executed  by  a mind  in  which  no  derangement  of  intellect  has 
ever  been  perceived,  that  it  is  of  the  greatest  importance  that  the 
nature  of  these  cases  should  not  be  misunderstood.” 

Our  learned  witnesses  have  given  us  various  definitions  of  a de- 
lusion. Dr.  Hun’s  is  perhaps  as  clear  and  accurate  as  any:  “ It  is 
a cherished  opinion  opposed  by  the  sense  and  judgment  of  all  man- 
kind.” In  simple  speech,  it  is  what  is  called  the  predominance  of 
one  idea,  by  which  reason  is  subverted.  I shall  now  show  you  such 
a predominance  of  one  idea,  as  will  elucidate  the  progress  of  this 
maniac  from  the  first  disturbance  of  his  mind,  to  the  dreadful  ca- 
tastrophe on  the  shores  of  the  Owasco  Lake.  That  delusion  is  a 
star  to  guide  your  judgment  to  an  infallible  conclusion,  that  the 
prisoner  is  insane.  If  you  mistake  its  course  and  consign  him  to 
a scaffold,  it  will  rest  over  his  grave,  indicating  him  as  a martyr, 
and  you  as  erring  or  unjust  judges. 

In  April,  1840,  Mrs.  Godfrey,  who  resides  in  the  town  of  Sen- 
nett,  on  the  middle  road,  four  miles  northeast  of  Auburn,  lost  a 
horse.  One  Jack  Furman,  a hardened  offender,  stole  the  horse. 
For  some  purpose  not  now  known,  he  put  him  in  the  care  of  the 
prisoner,  who  was  seen  with  him.  Both  Furman  and  Freeman  were 
arrested.  The  former  was  the  real  thief  and  Freeman  construct- 
ively guilty.  Freeman  was  arrested  by  Vanderheyden,  taken  into 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


179 


an  upper  chamber,  and  there  declared  his  innocence  of  the  crvne. 
He  was  nevertheless  committed  to  jail.  All  the  police,  and  the 
most  prejudiced  of  the  witnesses  for  the  people,  have  testified  their 
entire  conviction  that  the  prisoner  was  innocent.  Furman  was 
selected  by  favor  as  a witness  for  the  people.  Freeman,  while  in 
jail,  comprehending  his  danger,  and  conscious  of  his  innocence, 
dwelt  upon  the  injustice,  until,  having  no  other  hope,  he  broke  pris- 
on and  escaped.  Being  retaken,  he  assigned  as  the  reason  for  his 
^ight,  that  Jack  Furman  stole  the  horse,  and  was  going  to  swear 
him  into  the  State  prison.  The  result  was  as  he  apprehended.  He 
was  convicted  by  the  perjury  of -Furman,  and  sentenced  to  the 
State  prison  for  five  years.  This  was  the  first  act  in  the  awful 
traglsdy  of  which  he  is  the  hero.  Let  judges  and  jurors  take  warn- 
ing from  its  fatal  consequences.  How  deeply  this  injustice  sank 
into  his  mind,  may  be  seen  from  the  testimony  of  Aretas  A.  Sabin, 
the  keeper,  who  said  to  him  on  the  day  he  entered  the  prison,  “ I 
am  sorry  to  see  you  come  here  so  young.”  The  prisoner  wept. 
Well  would  it  have  been  if  this,  the  last  occasion  on  which  the 
prisoner  yielded  to  that  infirmity,  had,  ominous  as  it  was  of  such 
fatal  mischief,  been  understood  and  heeded.  A year  passed  away, 
and  he  is  found  in  the  prison,  neglecting  his  allotted  labor,  sullen 
and  morose. 

Mr.  Seward  next  traced  the  progress  of  the  mental  derangement  of  the  ac- 
cused while  he  was  in  prison.  He  then  reviewed,  in  elaborate  detail,  his  conduct 
and  actions  from  the  time  he  left  prison  down  to  the  night  of  the  murder,  and 
claimed  that  it  had  been  shown  that  a sense  of  his  wrongs  had  taken  complete 
possession  of  him,  and  whatever  of  mind,  conscience  or  reason  remained,  had 
been  finally  overthrown.  His  conduct  after  the  murder  was  next  taken  up,  for 
the  purpose  of  showing  that  his  past  misfortunes  were  the  burden  of  his  life,  it 
having  appeared  that  he  always  confessed  the  deed,  and  in  answer  to  questions 
put  to  him  to  ascertain  his  motive,  the  answers  were  broken  and  incoherent,  but 
invariably  referred  to  his  being  in  prison  innocently,  and  could  get  no  pay 
for  it. 

It  would  be  tedious  to  gather  all  the  evidence  of  similar  import. 
Let  it  suffice,  that  the  witnesses  who  have  conversed  with  the  pris- 
oner, as  well  those  for  the  people  as  those  for  him,  concur  fully  in 
the  same  statement  of  facts,  as  to  his  reasons  and  motives  for  the 
murders.  We  have  thus  not  merely  established  the  existence  of 
an  insane  delusion,  but  have  traced  directly  to  that  overpowering 
delusion,  the  crimes  which  the  prisoner  has  committed. 

How  powerful  that  delusion  must  have  been,  may  be  inferred 
from  the  fact  that  the  prisoner,  when  disabled,  desisted  from  his 
work  and  made  his  retreat  to  his  friends  in  Oswego  county,  not  to 


SPEECH  OF  WILLIAM  H.  SEWARD 

escape  from  punishment  for  the  murders,  but,  as  he  told  Mr.  E.  A, 
Warden,  to  wait  till  his  wounded  hand  should  be  restored,  that  he 
might  resume  his  dreadful  butchery;  and,  as  he  told  Dr.  Bigelow, 
because  he  couldn’t  “ handle  his  hand.”  The  intenseness  of  this 
delusion  exceeds  that  under  which  Platfield  assailed  the  king; 
that  which  compelled  Henriette  Cornier  to  dissever  the  head  of 
the  child  entrusted  to  her  care;  and  that  of  Rabello,  the  Portuguese, 
who  cut  to  pieces  with  his  axe,  the  child  who  trod  upon  his  feet. 

13.  The  circumstances  of  the  murder  tested  by  scientific 

RULES. 

The  next  feature  in  the  cause  which  will  claim  your  attention, 
gentlemen  of  the  jury,  is  the  manner  and  circumstances  of 

THE  ACT  ITSELF. 

In  Ray’s  Medical  Jurisprudence,  at  page  224,  are  given  several 
tests  by  which  to  distinguish  between  the  homicidal  maniac  and 
the  murderer.  We  shall  best  consider  the  present  case  by  com- 
paring it  with  those  tests: 

I.  “ There  is  the  irresistible^  motiveless  impulse  to  destroy  life.” 
Never  was  homicide  more  motiveless^  or  the  impulse  more  com- 
pletely irresistible,  than  in  the  present  case,  as  we  have  learned 
from  the  testimony  already  cited. 

II.  “ In  nearly  all  cases  the  criminal  act  has  been  preceded, 
either  by  some  well  marked  disturbance  of  the  health,  or  by  an 
irritable,  gloomy,  dejected,  or  melancholy  state;  in  short,  by  many 
of  the  symptoms  of  the  incubation  of  mania.”  How  truly  does 
this  language  describe  the  condition  of  the  prisoner  during  the 
brief  period  of  his  enlargement  ! 

III.  “The  impulse  to  destroy  is  powerfully  excited  by  the  sight 
of  murderous  weapons — by  favorable  opportunities  of  accomplish- 
ing the  act — by  contradiction,  disgust,  or  some  other  equally  trivial 
and  even  imaginary  circumstance.” 

While  we  learn  from  Hersey’s  testimony,  that  the  prisoner  kept 
a store  of  knives  fit  for  such  a deed,  we  find  in  the  denial  of  his 
demands  for  settlement,  for  pay,  and  for  process,  by  Mrs.  Godfrey 
and  the  magistrates,  the  contradiction  and  causes  of  disgust  here 
described. 

IV.  “ The  victims  of  the  homicidal  monomaniac  are  either  en- 
tirely unknown  or  indifferent  to  him,  or  they  are  amongst  his  most 
loved  and  cherished  objects.” 

Freeman  passed  by  his  supposed  oppressors  and  persecutors, 
and  fell  upon  a family  absolutely  indifferent,  and  almost  unknown 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


181 


to  him,  while  he  reserved  the  final  stroke  for  his  nearest  and  best 
friend,  and  brother-in-law. 

V.  “ The  monomaniac  sometimes  diligently  conceals  and  some- 
times avows  his  purpose,  and  forms  schemes  for  putting  it  into  ex- 
ecution, testifying  no  sentiment  of  grief.” 

The  prisoner  concealed  his  purpose  from  all  but  Hersey.  He 
purchased  the  knife  which  he  used,  in  open  day,  at  a blacksmith’s 
shop,  in  the  presence  of  persons  to  whom  he  was  well  known,  and 
ground  it  to  its  double  edge  before  unsuspecting  witnesses,  as 
coolly  and  deliberately  as  if  it  were  to  be  employed  in  the  sham- 
bles. He  applied  at  another  blacksmith’s  shop,  where  he  was 
equally  well  known,  to  have  another  instrument  made.  He  shaped 
the  pattern  in  a carpenter’s  shop,  carried  it  to  the  smith,  disagreed 
about  the  price,  and  left  the  pattern  upon  the  forge  in  open  sight, 
never  thinking  to  reclaim  it,  and  it  lay  there  until  it  was  taken  by 
the  smith  before  the  coroner’s  inquest,  as  an  evidence  of  his  design. 
So  strange  was  his  conduct,  and  so  mysterious  the  form  of  the 
knife  which  he  required,  that  Morris,  the  smith,  suspected  him,  and 
told  him  that  he  was  going  to  kill  somebody;  to  which  he  answered 
with  the  nonchalance  of  the  butcher:  ^'‘that's  nothing  to  you  if  you 
get  your  pay  for  the  knife."  On  the  two  days  immediately  pre- 
ceding the  murder,  he  is  found  sharpening  and  adjusting  his  knives 
at  a turner’s  shop,  next  door  to  his  own  dwelling,  in  the  presence 
of  persons  to  whom  he  is  well  known,  manifesting  no  apprehension, 
and  affecting  no  concealment. 

The  trivial  concerns  of  his  finance  and  occupation  are  as  care- 
fully attended  to,  as  if  the  murder  he  was  contemplating  had  been 
an  ordinary  and  lawful  transaction.  Hyatt  demands  three  shillings 
for  the  knife.  The  prisoner  cheapens  until  the  price  is  reduced  to 
eighteen  pence,  with  the  further  advantage  that  it  should  be  sharp- 
ened and  fitted  to  a handle.  Hyatt  demands  sixpence  for  putting 
a rivet  into  his  knife.  He  compromises,  and  agrees  to  divide  the 
labor  and  pay  half  the  price.  He  deliberately  takes  out  his  wallet 
and  lays  down  three  cents  for  Simpson,  the  turner,  for  the  use  of 
the  grindstone.  On  the  very  day  of  the  murder,  he  begs  some 
grease  at  the  soap  factory  to  soften  his  shoes,  and  tells  Aaron 
Demun  that  he  is  going  into  the  country  to  live  in  peace.  At  four 
o’clock  in  the  afternoon  he  buys  soap  at  the  merchant’s  for  Mary 
Ann  Newark,  the  poor  woman  at  whose  house  he  lived.  He  then 
goes  cautiously  to  his  room,  takes  the  knives  from  the  place  of 
their  concealment  under  his  bed,  throws  them  out  of  the  window, 


182 


SPEECH  OF  WILLIAM  H.  SEWARD 


to  avoid  exposure  to  her  observation,  and  when  the  night  has 
come,  and  the  bells  are  ringing  for  church,  and  all  is  ready,  he 
stops  to  ask  the  woman  whether  there  is  any  chore  to  be  done. 
She  tells  him,  none,  but  to  fill  the  tub  with  snow.  He  does  it  as 
carefully  as  if  there  were  no  commotion  in  his  mind,  and  then  sal- 
lies forth,  takes  up  his  instruments,  and  proceeds  on  his  errand  of 
death.  He  reconnoiters  the  house  on  the  north  of  Van  Nest’s, 
Van  Nest’s  house,  and  Brooks’  house  on  the  south,  and  finally  de- 
cides upon  the  middle  one  as  the  place  of  assault.  It  does  not 
affect  his  purpose  that  he  meets  Mr.  Cox  and  Mr.  Patten,  under  a 
broad,  bright  moonlight.  He  waits  his  opportunity,  until  William- 
son the  visitor  has  departed,  and  Van  Arsdale  the  laboring  man 
has  retired  to  rest.  With  an  energy  and  boldness  that  no  sane 
man  with  such  a purpose  could  possess,  he  mortally  stabs  four 
persons,  and  dangerously  wounds  a fifth,  in  the  incredibly  short 
space  of  five  minutes.  Disabled,  and  therefore  desisting  from  fur- 
ther destruction,  he  enters  the  stable,  takes  the  first  horse  he 
finds,  mounts  him  without  a saddle,  and  guiding  him  by  a halter, 
dashes  towards  the  town.  He  overtakes  and  passes  Williamson 
the  visitor,  within  the  distance  of  three-fourths  of  a mile  from  the 
house  which  he  had  left  in  supposed  security.  Pressing  on,  the 
jaded  beast,  worn  out  with  age,  stumbles  and  brings  him  to  the 
ground.  He  plunges  his  knife  into  the  breast  of  the  horse,  aban- 
dons him,  scours  forward  through  the  town,  across  the  bridge  and 
on  the  middle  road  to  Burrington’s;  there  seizes  another  horse, 
mounts  him,  and  urges  forward  until  he  arrives  among  his  rela- 
tions, the  De  Buys,  at  Schroeppel,  thirty  miles  distant.  They,  sus- 
pecting him  to  have  stolen  the  horse,  refuse  to  entertain  him.  He 
proceeds  to  the  adjoining  village,  rests  from  his  flight,  offers  the 
horse  for  sale,  and  when  his  title  to  the  horse  is  questioned  an- 
nounces his  true  name  and  residence,  and  refers  to  the  De  Puys, 
who  had  just  cast  him  off,  for  proof  of  his  good  character  and  con- 
duct. When  arrested  and  charged  with  the  murder  he  denies 
the  act. 

VI.  Now  the  sixth  test  given  by  Dr.  Ray  is,  that  “while  most 
maniacs  having  gratified  their  propensity  to  kill,  voluntarily  confess 
the  act  and  quietly  give  themselves  up  to  the  proper  authorities,  a 
very  few  only,  and  those  to  an  intelligent  observer  show  the  strongest 
indications  of  insanity,  fly  and  persist  in  denying  the  act.” 

VII.  “ Murder  is  never  criminally  committed  without  some 
motive  adequate  to  the  purpose  in  the  mind  that  is  actuated  by  it, 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


183 


while  the  insane  man  commits  the  crime  without  any  motive  what- 
ever, strictly  deserving  the  name.” 

VIII.  “ The  crhninal  never  sheds  more  blood  than  is  necessary 
for  the  attainment  for  his  object.  The  monomaniac  often  sacrifices 
all  within  his  reach,  to  the  cravings  of  his  murderous  propensity.” 

IX.  criminal  either  denies  or  confesses  his  guilt;  if  the 
latter,  he  sues  for  mercy,  or  glories  in  his  crimes.  On  the  contrary, 
the  maniac^  after  gratifying  his  bloody  desires,  testifies  neither  re- 
morse, repentance,  nor  satisfaction.” 

X.  “The  criminal  has  accomplices;  the  maniac  has  none.” 

XI.  “ The  murderer  never  conceives  a design  to  murder  with- 
out projecting  a plan  for  concealing  his  victim,  effecting  his  escape, 
and  baffling  pursuit.  The  maniac  prepares  the  means  of  commit- 
ting the  crime,  with  calmness  and  deliberation,  but  never  dreams 
of  the  necessity  of  concealing  it  when  done,  or  of  escape,  until  his 
victim  lies  at  his  feet.” 

Dr.  Bigelow  and  others  state,  that  the  prisoner  told  them,  as  ob- 
viously was  the  case,  that  he  sought  no  plunder;  that  he  thought 
not  of  escape  or  flight,  until  his  things  were  broken,  and  his  hand 
was  cut,  so  that  he  could  not  continue  his  work.  He  seized  the 
nearest  and  the  most  worthless  horse  in  the  stable,  leaving  tWo  fleet 
animals  in  their  stalls.  He  thought  only  of  taking  Burrington’s 
horse  when  the  first  failed;  all  he  cared  for  was  to  get  out  of  the 
county,  there  to  rest  until  his  hand  was  cured,  so  that  he  could 
come  back  and  do  more  work.  He  rested  from  flight  within  thirty 
miles  from  the  seat  of  his  crimes,  and,  in  selling  his  horse,  was  de- 
priving himself  of  the  only  means  of  making  his  escape  successful. 
When  the  person  of  Van  Nest  was  examined,  his  watch,  pocket- 
book,  money  and  trinkets  were  found  all  undisturbed.  Not  an 
article  in  the  house  had  been  removed;  and  wTen  the  prisoner  was 
searched  upon  his  arrest,  there  was  found  in  his  pockets  nothing 
but  one  copper  coin,  the  hundredth  part  of  a dollar.  Without  fur- 
ther detail,  the  parallel  between  the  prisoner  and  the  tests  of  mad- 
ness established  by  medical  jurisprudence,  is  complete. 

It  remains,  gentlemen,  to  conclude  the  demonstration  of  the 
prisoner’s  insanity,  by  referring  to  the  testimony  of  the  witnesses 
who  have  given  their  opinion  on  that  question. 

Mr.  Seward  then  reviewed  the  testimony.  He  claimed,  upon  this  point,  that 
the  evidence  of  the  State  was  feeble  and  unsatisfactory.  Mobile  that  adduced  by 
the  defense  was  conclusive  and  overwhelming,  and  established  beyond  all  doubt 
the  fact  that  the  prisoner  was  insane.  In  discussing  the  statements  of  Dr.  Spen- 


184 


SPEECH  OF  WILLIAM  H.  SEWARD 


cer,  the  principal  expert  for  the  State,  he  proceeded  to  demolish  the  theories 
advanced  by  that  scientific  gentleman  after  the  following  fashion  : 

He  heralds  himself  as  accustomed  to  teach,  and  informs  us  that 
he  has  visited  the  principal  hospitals  for  the  insane  in  London, 
Paris,  and  other  European  capitals.  How  unfortunate  it  was,  that 
on  his  cross-examination,  he  could  not  give  the  name  or  location 
of  any  asylum  in  either  of  those  cities!  Even  the  names  and  loca- 
tions of  the  “ Charenton  ” and  “ Bicetre  ” had  escaped  his  memory. 
But  it  is  no  matter.  The  doctor  overwhelms  us  with  learning,  uni- 
versal and  incomprehensible.  Here  is  his  map  ^ of  the  mental 
faculties,  in  which  twenty-eight  separate  powers  of  mind  are  de- 
scribed in  odd  and  even  numbers. 

The  arrows  show  the  course  of  ideas  through  the  mind.  They 
begin  with  the  motives  in  the  region  of  the  highest  odd  numbers  in 
the  southwest  corner  of  the  mind,  marked  A,  and  go  perpendicu- 
larly northward,  through  Thirst  and  Hunger  to  Sensation  marked 
B;  then  turn  to  the  right,  and  go  eastward,  through  Conception,  to 
Attention,  marked  C,  and  then  descend  southward,  through  Per- 
ception, Memory,  Understanding,  Comparison,  Combination,  Rea- 
son, Invention  and  Judgment;  wheel  to  the  left  under  the  Will, 
marked  D,  and  pass  through  Conscience,  and  then  to  V,  the  un- 
ascertained center  of  Sensation,  Volition,  and  Will.  This  is  the 
natural  turnpike  road  for  the  ideas  when  we  are  awake  and  sane. 
But  here  is  an  open  shunpike,  X,  Y,  Z,  on  which  Ideas,  when  we 
are  asleep  or  insane,  start  off  and  pass  by  Conscience,  and  so  avoid 
paying  toll  to  that  inflexible  gatekeeper.  Now  all  this  is  very  well, 
but  I call  on  the  doctor  to  show  how  the  fugitive  Idea  reached  the 
Will  at  D,  after  going  to  the  end  of  the  shunpike.  It  appeared 
there  was  no  other  way  but  to  dart  back  again,  over  the  shunpike, 
or  else  go  cringing,  at  last,  through  the  iron  gate  of  Conscience. 
Then  there  was  another  difficulty.  The  doctor  forgot  the  most  im- 
portant point  on  his  own  map,  and  could  not  tell,  from  memory, 
where  he  had  located  the  unascertained  center." 

The  doctor  pronounces  the  prisoner  sane  because  he  has  the 
chief  intellectual  faculties.  Sensation,  Conception,  Attention,  Imagi- 
nation, and  Association.  Now  here  is  a delicate  piece  of  wooden 
cutlery,  fabricated  by  an  inmate  of  the  lunatic  asylum  at  Utica, 
who  was  acquitted  of  murder  on  the  ground  of  insanity.  He  who 
fabricated  it  evinced  in  the  manufacture.  Conception,  Perception, 


' For  the  Map,  see  Appendix,  p.  717. 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


185 


Memory,  Comparison,  Attention,  Adaptation,  Co-ordination,  Kind- 
ness, Gratitude,  Mechanical  Skill,  Invention,  and  Pride.  It  is  well 
for  him  that  Dr.  Spencer  did  not  testify  on  his  trial. 

Mr.  Seward  then  referred  to  the  overwhelming  preponderance  of  medical 
and  other  testimony  for  the  prisoner,  which  he  proceeded  to  analyze  with  great 
ability,  and  concluded  by  directing  attention  to  the  personal  conduct  and  de- 
meanor of  the  accused,  which  he  claimed  was  the  strongest  proof  of  his  insanity. 
This  may,  perhaps,  be  considered  the  most  touching  and  powerful  part  of  his 
address  : 

14.  The  personal  appearance  and  demeanor  of  the  pris- 
oner THE  STRONGEST  PROOF  OF  HIS  INSANITY. 

There  is  proof,  gentlemen,  stronger  than  all  this.  It  is  silent, 
yet  speaking.  It  is  that  idiotic  smile  which  plays  continually  on  the 
face  of  the  maniac.  It  took  its  seat  there  while  he  was  in  the  State 
prison.  In  his  solitary  cell,  under  the  pressure  of  his  severe  tasks 
and  trials  in  the  workshop,  and  during  the  solemnities  of  public 
worship  in  the  chapel,  it  appealed,  although  in  vain,  to  his  task- 
masters and  his  teachers.  It  is  a smile,  never  rising  into  laugh- 
ter— without  motive  or  cause — the  smile  of  vacuity.  His  mother 
saw  it  when  he  came  out  of  prison,  and  it  broke  her  heart.  John 
De  Puy  saw  it  and  knew  his  brother  was  demented.  Deborah  De 
Puy  observed  it  and  knew  him  for  a fool.  David  Winner  read  in 
it  the  ruin  of  his  friend  Sally’s  son.  It  has  never  forsaken  him  in 
his  later  trials.  He  laughed  in  the  face  of  Parker,  while  on  con- 
fession at  Baldwinsville.  He  laughed  involuntarily  in  the  faces  of 
Warden  and  Curtis,  and  Worden  and  Austin,  and  Bigelow  and 
Smith,  and  Brigham  and  Spencer.  He  laughs  perpetually  here. 
Even  when  Van  Arsdale  showed  the  scarred  traces  of  the  assassin’s 
knife,  and  when  Helen  Holmes  related  the  dreadful  story  of  the 
murder  of  her  patrons  and  friends,  he  laughed.  He  laughs  while  I 
am  pleading  his  griefs.  He  laughs  when  the  attorney-general’s 
bolts  would  seem  to  rive  his  heart.  He  will  laugh  when  you  de- 
clare him  guilty.  When  the  judge  shall  proceed  to  the  last  fatal 
ceremony,  and  demand  what  he  has  to  say  why  the  sentence  of  the 
law  should  not  be  pronounced  upon  him,  although  there  should  not 
be  an  unmoistened  eye  in  this  vast  assembly,  and  the  stern  voice 
addressing  him  should  tremble  with  emotion,  he  will  even  then  look 
up  in  the  face  of  the  Court  and  laugh,  from  the  irresistible  emo- 
tions of  a shattered  mind,  delighted  and  lost  in  the  confused  mem- 
ory of  absurd  and  ridiculous  associations.  Follow  him  to  the  scaf- 
fold. The  executioner  cannot  disturb  the  calmness  of  the  idiot. 


186 


SrEECH  OF  WILLIAM  H.  SEWARD 


He  will  laugh  in  the  agony  of  death.  Do  you  not  know  the  signifi- 
cance of  this  strange  and  unnatural  risibility  ? It  is  a proof  that 
God  does  not  forsake  even  the  poor  wretch  whom  we  pity  or  de- 
spise. There  are,  in  every  human  memory,  a well  of  joys  and  a 
fountain  of  sorrows.  Disease  opens  wide  the  one,  and  seals  up  the 
other  forever. 

You  have  been  told,  gentlemen,  that  this  smile  is  hereditary 
and  accustomed.  Do  you  think  that  ever  an  ancestor  or  parent  of 
the  prisoner,  or  even  the  poor  idiot  himself,  was  in  such  straits  as 
these  ? How  then  can  you  think  that  this  smile  was  ever  before 
recognized  by  these  willing  witnesses  ? That  chaotic  smile  is  the 
external  derangement  which  signifies  that  the  strings  of  the  harp  are 
disordered  and  broken,  the  superficial  mark  which  God  has  set 
upon  the  tabernacle,  to  signify  that  its  immortal  tenant  is  disturbed 
by  a divine  and  mysterious  commandment.  If  you  cannot  see  it, 
take  heed  that  the  obstruction  of  your  vision  be  not  produced  by 
the  mote  in  your  own  eye,  which  you  are  commanded  to  remove 
before  you  consider  the  beam  in  your  brother’s  eye.  If  you  are 
bent  on  rejecting  the  testimony  of  those  who  know,  by  experience 
and  by  science,  the  deep  afflictions  of  the  prisoner,  beware  how  you 
misinterpret  the  handwriting  of  the  Almighty. 

I have  waited  until  now,  gentlemen,  to  notice  some  of  the  anim- 
adversions of  the  counsel  for  the  people.  They  say  that  drunken- 
ness will  explain  the  conduct  of  the  prisoner.  It  is  true  that  John 
De  Puy  discovered  that  those  who  retailed  poisonous  liquors  were 
furnishing  the  prisoner  with  this,  the  worst  of  food  for  his  madness. 
But  the  most  laborious  investigation  has  resulted  in  showing,  by  the 
testimony  of  Adam  Gray,  that  he  once  saw  the  prisoner  intoxicated, 
and  that  he,  with  some  other  persons,  drank  spirits  in  not  immod- 
erate quantity  on  the  day  when  Van  Nest  was  slain.  There  is  no 
other  evidence  that  the  prisoner  was  ever  intoxicated.  John  De 
Puy  and  Adam  Gray  testify,  that,  except  that  one  time,  he  was 
always  sober.  David  Winner  proves  he  was  sober  all  the  time  the 
witness  lived  at  Willard’s;  and  Mary  Ann  Newark  says  he  was  en- 
tirely sober  when  he  sallied  forth  on  his  fatal  enterprise.  The  only 
value  of  the  fact  of  his  drunkenness,  if  it  existed,  would  be  to  ac- 
count for  his  disturbed  nights  at  De  Puy’s,  at  Gray’s  and  at  Wil- 
lard’s. It  is  clearly  proved  that  his  mind  was  not  beclouded,  nor 
his  frame  excited,  by  any  such  cause  on  any  of  those  occasions; 
and  Doctor  Brigham  truly  tells  you,  that  while  the  maniac  goes 
quietly  to  his  bed,  and  is  driven  from  it  by  the  dreams  of  a dis- 


IN  DEFENSE  OF  WILLIAM  FREEMAN. 


187 


turbed  imagination,  the  drunkard  completes  his  revels  and  his  orgies 
before  he  sinks  to  rest,  and  then  lies  stupid  and  besotted  until  na- 
ture restores  his  wasted  energies  with  return  of  day. 

He  then  spoke  of  the  assaults  which  had  been  made  upon  the  credibility  of 
several  of  the  witnesses  for  the  defense,  and  the  attempts  to  discredit  them  on  ac- 
conut  of  their  social  position  and  low  standard  of  intelligence,  and  continued  as 
follows  ; 

The  testimony  of  Sally  Freeman,  the  mother  of  the  prisoner,  is 
:^uestioned.  She  utters  the  voice  of  nature.  She  is  the  guardian 
tvhom  God  assigned  to  study,  to  watch,  to  learn,  to  know  what  the 
prisoner  was,  and  is,  and  to  cherish  the  memory  of  it  forever.  She 
could  not  forget  it  if  she  would.  There  is  not  a blemish  on  the 
person  of  any  one  of  us,  born  with  us  or  coming  from  disease  or 
accident,  nor  have  we  committed  a right  or  wrong  action,  that  has 
not  been  treasured  up  in  the  memory  of  a mother.  Juror  ! roll  up 
the  sleeve  from  your  manly  arm,  and  you  will  find  a scar  there  of 
which  you  know  nothing.  Your  mother  will  give  you  the  detail  of 
every  day’s  progress  of  the  preventive  disease.  Sally  Freeman  has 
the  mingled  blood  of  the  African  and  Indian  races.  She  is,  never- 
theless, a woman  and  a mother,  and  nature  bears  witness  in  every 
climate  and  every  country,  to  the  singleness  and  uniformity  of  those 
characters.  I have  known  and  proved  them  in  the  hovel  of  the 
slave,  and  in  the  wigwam  of  the  Chippewa.  But  Sally  Freeman 
has  been  intemperate.  The  white  man  enslaved  her  ancestors  of 
the  one  race,  exiled  and  destroyed  those  of  the  other,  and  debased 
them  all  by  corrupting  their  natural  and  healthful  appetites.  She 
comes  honestly  by  her  only  vice.  Yet  when  she  comes  here  to  tes- 
tify for  a life  that  is  dearer  to  her  than  her  own,  to  say  she  knows 
her  own  son,  the  white  man  says  she  is  a drunkard  ! May  Heaven 
forgive  the  white  man  for  adding  this  last,  this  cruel  injury  to  the 
wrongs  of  such  a mother!  Fortunately,  gentlemen,  her  character 
and  conduct  are  before  you.  No  woman  has  ever  appeared  with 
more  decency,  modesty  and  propriety  than  she  has  exhibited  here. 
No  witness  has  dared  to  say  or  think  that  Sally  Freeman  is  not  a 
woman  of  truth.  Dr.  Clary,  a witness  for  the  prosecution,  who 
knows  her  well,  says,  that  with  all  her  infirmities  of  temper  and  of 
habit,  Sally  “was  always  a truthful  woman.”  The  Roman  Cornelia 
could  not  have  claimed  more.  Let  then  the  stricken  mother 
testify  for  her  own  son. 

“ I ask  not,  I care  not — if  guilt’s  in  that  heart, 

I know  that  I love  thee,  whatever  thou  art.” 


188 


SPEECH  OF  WILLIAM  H.  SEWaRD 


The  learned  gentlemen  who  conduct  this  prosecution  have  at- 
tempted to  show  that  the  prisoner  attended  the  trial  of  Henry 
Wyatt,  whom  I defended  against  an  indictment  for  murder,  in  this 
Court,  in  February  last ; that  he  listened  to  me  on  that  occasion, 
in  regard  to  the  impunity  of  crime,  and  that  he  went  out  a ripe  and 
complete  scholar.  So  far  as  these  reflections  affect  me  alone,  they 
are  unworthy  of  an  answer.  I pleaded  for  Wyatt  then,  as  it  was 
my  right  and  my  duty  to  do.  Let  the  counsel  for  the  people  prove 
the  words  I spoke,  before  they  charge  me  with  Freeman’s  crimes. 
I am  not  unwilling  those  words  should  be  recalled.  I am  not  un- 
willing that  any  words  I ever  spoke  in  any  responsible  relation 
should  be  remembered.  Since  they  will  not  recall  those  words,  I 
will  do  so  for  them.  They  were  words  like  those  I speak  now,  de- 
manding cautious  and  impartial  justice;  words  appealing  to  the 
reason,  to  the  consciences,  to  the  humanity  of  my  fellow  men;  words 
calculated  to  make  mankind  know  and  love  each  other  better,  and 
adopt  the  benign  principles  of  Christianity,  instead  of  the  long- 
cherished  maxims  of  retaliation  and  revenge.  The  creed  of  Ma- 
homet was  promulgated  at  a time  when  paper  was  of  inestimable 
value,  and  the  Koran  teaches  that  every  scrap  of  paper  which  the 
believer  has  saved  during  his  life,  will  gather  itself  under  his  feet, 
to  protect  them  from  the  burning  iron  which  he  must  pass  over 
while  entering  into  Paradise.  Regardless  as  I have  been  of  the 
unkind  construction  of  my  words  and  actions  by  my  cotemporaries, 
I can  say  in  all  humility  of  spirit,  that  they  are  freely  left  to  the 
ultimate,  impartial  consideration  of  mankind.  But,  gentlemen, 
how  gross  is  the  credulity  implied  by  this  charge  ! This  stupid 
idiot,  who  cannot  take  into  his  ears — deaf  as  death — the  words 
which  I am  speaking  to  you,  though  I stand  within  three  feet  of 
him,  and  who  even  now  is  exchanging  smiles  with  his  and  my  ac- 
cusers, regardless  of  the  deep  anxiety  depicted  in  your  countenan- 
ces, was  standing  at  yonder  post,  sixty  feet  distant  from  me,  when 
he  was  here,  if  he  was  here  at  all,  on  the  trial  of  Henry  Wyatt. 
The  voice  of  the  district  attorney  reverberates  through  this  dome, 
while  mine  is  lost  almost  within  the  circle  of  the  bar.  It  does  not 
appear  that  it  was  not  that  voice  that  beguiled  the  maniac,  instead 
of  mine;  and  certain  it  is,  that  since  the  prisoner  does  not  compre- 
hend the  object  of  his  attendance  here  now,  he  could  not  have  un- 
derstood anything  that  occurred  on  the  trial  of  Wyatt. 

Gentlemen,  my  responsibilities  in  this  cause  are  discharged.  In 
the  earnestness  and  seriousness  with  which  I have  pleaded,  you 


IN’  DEFENSE  OF  WILLIAM  FREEMAN. 


189 


will  find  the  reason  for  the  firmness  with  which  I have  resisted  the 
popular  passions  around  me.  I am,  in  some  degree,  responsible, 
like  every  other  citizen,  for  the  conduct  of  the  community  in  which 
I live.  They  may  not  inflict  on  a maniac  the  punishment  of  a male- 
factor, without  involving  me  in  the  blame,  if  I do  not  remonstrate. 
I cannot  afford  to  be  in  error  abroad,  and  in  future  times.  If  I 
were  capable  of  a sentiment  so  cruel  and  so  base,  I ought  to  hope 
for  the  conviction  of  the  accused;  for  then  the  vindictive  passions, 
now  so  highly  excited  would  subside,  the  consciences  of  the  wise 
and  the  humane  would  be  awakened,  and  in  a few  months  the  in- 
vectives, which  have  so  long  pursued  me,  would  be  hurled  against 
the  jury  and  the  Court. 

You  have  now  the  fate  of  this  lunatic  in  your  hands.  To  him 
as  to  me,  so  far  as  we  can  judge,  it  is  comparatively  indifferent 
what  be  the  issue.  The  wisest  of  modern  men  has  left  us  a saying, 
that  “ the  hour  of  death  is  more  fortunate  than  the  hour  of  birth,” 
a saying  which  he  signalized  by  bestowing  a gratuity  twice  as  great 
upon  the  place  where  he  died  as  upon  the  hamlet  where  he 
was  born.  For  ought  that  we  can  judge,  the  prisoner  is  uncon- 
scious of  danger  and  would  be  insensible  to  suffering,  let  it  come 
when  it  might.  A verdict  can  only  hasten,  by  a few  months  or 
years,  the  time  when  his  bruised,  diseased,  wandering  and  be- 
nighted spirit  shall  return  to  Him  who  sent  it  forth  on  its  sad  and 
dreary  pilgrimage. 

The  circumstances  under  which  this  trial  closes  are  peculiar.  I 
have  seen  capital  cases  where  the  parents,  brothers,  sisters,  friends 
of  the  accused  surrounded  him,  eagerly  hanging  upon  the  lips  of 
his  advocate,  and  watching  in  the  countenances  of  the  Court  and 
jury,  every  smile  and  frown  which  might  seem  to  indicate  his  fate. 
But  there  is  no  such  scene  here.  The  prisoner,  though  in  the 
greenness  of  youth,  is  withered,  decayed,  senseless,  almost  lifeless. 
He  has  no  father  here.  The  descendant  of  slaves,  that  father  died 
a victim  to  the  vices  of  a superior  race.  There  is  no  mother  here, 
for  her  child  is  stained  and  polluted  with  the  blood  of  mothers  and 
a sleeping  infant;  and  “he  looks  and  laughs  so  that  she  cannot 
bear  to  look  upon  him.”  There  is  no  brother,  or  sister,  or  friend 
here.  Popular  rage  against  the  accused  has  driven  them  hence, 
and  scattered  his  kindred  and  people.  On  the  other  side  I notice 
the  aged  and  venerable  parents  of  Van  Nest,  and  his  surviving 
children,  and  all  around  are  mourning  and  sympathizing  friends. 
I know  not  at  whose  instance  they  have  come.  I dare  not  say 


190 


SPEECH  OF  WILLIAM  H.  SEWARD. 


they  ought  not  to  be  here.  But  I must  say  to  you  that  we  live  in 
a Christian  and  not  in  a savage  State,  and  that  the  affliction  which 
has  fallen  upon  these  mourners  and  us,  was  sent  to  teach  them  and 
us  mercy  and  not  retaliation;  that  although  we  may  send  this 
maniac  to  the  scaffold,  it  will  not  recall  to  life  the  manly  form  of 
Van  Nest,  nor  reanimate  the  exhausted  frame  of  that  aged  matron, 
nor  restore  to  life,  and  grace,  and  beauty,  the  murdered  mother, 
nor  call  back  the  infant  boy  from  the  arms  of  his  Saviour.  Such 
a verdict  can  do  no  good  to  the  living,  and  carry  no  joy  to  the 
dead.  If  your  judgment  shall  be  swayed  at  all  by  sympathies  so 
wrong,  although  so  natural,  you  will  find  the  saddest  hour  of  your 
life  to  be  that  in  which  you  will  look  down  upon  the  grave  of  your 
victim,  and  ‘‘  mourn  with  compunctious  sorrow  ” that  you  should 
have  done  so  great  injustice  to  the  “ poor  handful  of  earth  that 
will  lie  mouldering  before  you.” 

I have  been  long  and  tedious.  I remember  that  it  is  the  har- 
vest moon,  and  that  every  hour  is  precious  while  you  are  detained 
from  your  yellow  fields.  But  if  you  shall  have  bestowed  patient 
attention  throughout  this  deeply  interesting  investigation,  and  shall 
in  the  end  have  discharged  your  duties  in  the  fear  of  God  and  in 
the  love  of  truth  justly  and  independently,  you  will  have  laid  up  a 
store  of  blessed  recollections  for  all  your  future  days,  imperishable 
and  inexhaustible. 


John  Van  Buren,  attorney-general,  closed  the  case  for  the  people,  and  the 
Hon.  Bowen  Whiting  delivered  the  charge.  The  jury,  after  consultation,  on  the 
23d  of  July,  returned  a verdict  of  guilty,  and  the  prisoner  was,  at  6:30  o’clock  the 
next  morning,  sentenced  to  be  hanged  on  the  i8th  of  September.  Mr.  Seward 
obtained  a writ  of  error,  and  the  conviction  was  afterwards  reversed  and  a new 
trial  ordered,  (Freeman  v.  The  People,  4 Denio.)  After  the  reversal  by  the 
General  Term,  the  prisoner  was  visited  by  the  Circuit  Judge,  with  reference  to 
the  propriety  of  having  him  arraigned,  and  it  is  said  he  declined  to  try  him  again. 
The  prisoner  died  in  his  cell  August  2ist,  1847.  A post  mortem  examination 
was  had,  which  revealed  the  fact  that  his  brain  had  been  long  diseased,  and  that 
he  must  have  been  insane  before  the  murder. 


ARGUMENT  OF  CHARLES  O’CONOR, 


For  the  Claimants,  in  the  Case  of  the  Brig-of-War 
General  Armstrong, 

[Armstrong  v.  The  United  States,  Dev.  Ct.  of  Cl.  22  ] 

BEFORE  THE  UNITED  STATES  COURT  OF  CLAIMS,  AT  WASH- 
INGTON, D.  C.,  NOVEMBER  27th,  1855. 


International  Law. — Where  the  claim  of  a citizen  upon  a foreign 
government  has  been  submitted  to  arbitration,  without  his  consent,  or 
without  an  opportunity  to  be  heard,  and  the  award  is  adverse  to  him,  the 
government  must  respond  to  the  claimant  in  damages. 


Analysis  OF  Mr.  O’Conor’s  Argument. 


Xo  Unprecedented  character  of  the  claim, 
and  the  court. 

а.  Origin  and  growth  of  jurisprudence. — 

Classification  of  rights  and  remedies. 

3.  Object  and  purposes  of  legal  tribunals. 

4.  Early  struggles  of  the  English  chancel- 

lors in  framing  a system  of  equity. 

5.  Character  and  importance  of  the  Court 

of  Claims. 

б.  Power  of  the  court  to  create  remedies, 

and  grant  relief. 

7.  Condition  of  the  republic  in  1812. 

8.  Story  of  the  destruction  of  the  “ Amer- 

ican Privateer.” 

9.  Liability  of  Portugal. 

10.  The  United  States  could  look  to  Portugal 

alone  for  redress. 

11.  Rights  of  belligerents  in  neutral  terri- 

tory. 

la.  A nation  like  an  individual  bound  abso- 
lutely to  discharge  its  obligations. 

13.  Portugal  bound  to  prevent  hostilities 

within  its  jurisdiction. 

14.  Extent  of  the  liability  of  a neutral. 

15.  Such  liabilitv  absolute. 

16.  Such  liability  not  affected  by  the  strength 

of  the  government. 

17.  Neither  poverty  nor  weakness  a ground 

of  exemption. 


18.  Government  bound  to  enforce  a subject’s 

claim  for  damages  against  a foreign 
power. 

19.  The  government  responsible  for  its  fail- 

ure to  enforce  such  claim. 

20.  In  its  prosecution  the  government  is  not 

the  agent  of  the  claimant. 

21.  Submission  of  the  claim  to  arbitration 

creates  no  estoppel. 

22.  Government  failed  to  present  the  facts 

to  the  arbitrator, 

23.  Claimant  forbidden  to  argue  his  cause 

before  Napoleon, 

24.  The  award  invalid  since  it  turned  upon 

a question  not  submitted  to  the  ar- 
bitrator. 

25.  A single  question  of  law  all  that  was  in- 

tended to  be  referred. 

26.  The  question  as  to  who  was  the  ag- 

gressor a matter  of  national  honor 
or  shame. 

27.  There  was  no  question  of  fact  before 

Napoleon . 

28.  Circumstances  under  which  the  Arm- 

strong fired  the  first  gun. 

29.  Napoleon’s  award  should  have  been  re- 

jected as  void  for  want  of  jurisdic- 
tion. 


[191J 


192 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


30.  When  the  award  was  accepted,  the  lia- 

bility of  Portugal  was  extinguished, 
and  the  liability  of  our  government 
arose. 

31.  Ground  of  the  liability  of  the  govern- 

ment. 

32.  Review  of  the  evidence  as  to  who  was 

the  aggressor. 

33.  The  arbitration  never  ratified  by  the 

claimants. 

34.  Captain  Reid  bound  in  law  and  honor  to 

pursue  the  course  he  did. 


35.  The  claim  founded  on  principles  of  jus- 

tice and  equity. 

36.  Private  property  cannot  be  taken  foi 

public  use  without  just  compensa- 
tion. 

37.  General  observations  as  to  the  duty  of 

the  government. 

38.  The  claim  against  Portugal  sacrificed 

for  public  ends. 

39.  Observations  as  to  the  antiquity  of  the 

claim  and  its  alleged  rejection. 

40.  Personal  motives  of  Captain  Reid.— A 

comparison  with  Washington. 


The  battle  of  Fayal  will  be  remembered  as  one  of  the  most  brilliant  naval 
engagements  in  the  second  war  between  the  United  States  and  Great  Britain. 
It  was  fought  on  the  night  of  the  26th  of  September,  1814,  in  the  port  of  Fayal, 
one  of  the  Azores  islands,  in  the  dominions  of  Portugal.  In  this  famous  action 
the  damages  were  sustained,  which  form  the  subject  of  the  very  interesting  and 
able  argument  of  Mr.  O’Conor  here  presented.  The  legal  controversy  lasted  for 
more  than  forty  years,  having  engaged  public  attention  from  the  time  of  James 
Monroe,  down  to  the  administration  of  James  Buchanan.  Some  of  the  most  dis- 
tinguished men  in  the  United  States,  Portugal,  England,  and  France  conducted 
the  protracted  diplomatic  correspondence.  The  claim  v/as  pressed  with  such 
zeal  and  ardor,  that  hostilities  seemed  at  one  time  inevitable.  President  Taylor 
sent  a fleet  to  Portugal,  and,  had  he  lived,  the  hero  of  Buena  Vista  would,  doubt- 
less, have  sustained  his  country’s  honor,  and  enforced  payment,  even  through 
the  intervention  of  war,  if  necessary. 

During  our  second  memorable  struggle  with  Great  Britain,  in  1812,  the  Amer- 
ican brig  General  Armstrong  was  fitted  out  as  a privateer.  She  sailed  from 
Sandy  Hook,  on  the  evening  of  the  9th  of  September,  1814,  under  command  of 
Captain  Sam.  C.  Reid,  of  New  York,  with  a crew  of  ninety  men  ; and,  on  the 
26th,  ran  into  Fayal  roads  for  a supply  of  fresh  water.  Portugal,  being  a neutral 
power,  the  vessel  was  entitled,  under  the  law  of  nations,  to  protection  while 
within  neutral  territory.  It  is  an  elementary  principle,  that  the  property  of 
belligerents,  while  within  neutral  jurisdiction,  is  inviolable.  It  is  not  lawful  to 
make  neutral  territory  the  scene  of  hostility,  or  to  attack  an  enemy  while  within 
it ; and  if  the  enemy  be  attacked,  or  any  capture  is  made  under  neutral  protec- 
tion, the  neutral  is  bound  to  redress  the  injury,  and  effect  restitution.* 

The  American  privateer,  having  learned  that  none  of  the  enemy’s  cruisers  had 
been  seen  in  that  latitude  for  several  weeks,  cast  anchor,  supposing,  of  course,  in 
case  she  was  surprised  by  the  arrival  of  a hostile  squadron,  or  by  superior  strength 
and  numbers,  that  the  laws  of  civilized  warfare  would  be  observed,  and  the  neutral- 
ity of  the  port  respected.  About  sunset  a British  brig,  the  Carnation,  hove  in  sight. 
Two  more  of  the  enemy’s  vessels,  the  Rota  and  Plantagenet,  were  sighted,  and 
signalled,  and  appeared  suddenly  in  the  roads.  The  hostile  squadron  closed  in 
upon  Captain  Reid’s  gallant  little  vessel,  and,  in  utter  violation  of  every  principle 
of  good  faith  and  national  honor,  determined  to  overpower  the  Americans  and 
capture  their  ship.  Shortly  after  dusk.  Captain  Reid,  noticing  some  suspicious 
movements,  began  to  haul  his  vessel  close  under  the  guns  of  the  castle.  The 


* Kent’s  Com.  vol.  i,  p.  117;  Vattel,  book  3d,  ch.  7,  § 132. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  193 


moon  was  near  its  full,  riding  in  the  heavens  like  a ball  of  silver,  and  the  clear 
light  revealed  to  the  American  commander  every  movement  of  the  enemy.  The 
Carnation,  about  eight  o’clock,  lowered  all  her  boats,  which  were  manned  with 
an  armed  force,  and  moved  rapidly  towards  the  “ Armstrong.”  Seeing  this  hos- 
tile demonstration.  Captain  Reid,  after  warning  them  to  keep  off,  cleared  the 
decks  for  action.  The  boats,  however,  paid  no  attention  to  the  warning,  and, 
when  they  got  nearly  alongside,  the  Americans  opened  a murderous  fire,  which 
was  promptly  returned.  The  enemy  cried  for  quarter,  and  hauled  off,  having 
lost  upwards  of  twenty  killed  and  wounded.  Aboard  the  Armstrong  one  man 
was  killed,  and  the  first  lieutenant  wounded.  They  now  prepared  for  a more 
formidable  attack.  The  inhabitants  of  the  island  crowded  to  the  shore  to  wit- 
ness the  magnificent  and  exciting  spectacle  about  to  take  place.  The  little 
vessel  floating  the  stars  and  stripes  carried  but  seven  guns.'  The  Carnation 
carried  i8  guns,  the  Rota  38,  and  the  Plantagenet  74.  About  midnight  the 
attack  was  renewed  with  twelve  boats,  and  about  four  hundred  men.  As  this 
fleet  approached  the  Americans  opened  a heavy  fire,  which  was  promptly  re- 
turned. This  continued  until  the  enemy  was  alongside,  and  attempted  to  board 
the  vessel.  They  were  driven  back  with  great  slaughter.  The  Armstrong’s 
second  lieutenant  had  died  of  his  injuries,  and  the  third  lieutenant  was  badly 
wounded,  consequently  the  fire  was  slackened  at  the  forecastle  ; but  the  gallant 
captain,  rallying  his  entire  force,  succeeded  in  beating  off  the  enemy  in  a hand 
to  hand  conflict,  in  which  swords,  pikes,  pistols  and  muskets  were  freely  used. 
The  attack  was  renewed  a third  time  with  a wild  shout,  and,  after  a decided 
conflict,  the  enemy  were  routed,  and  many  of  their  boats  entirely  destroyed. 
The  action  lasted  about  forty  minutes.  The  British  lost  nearly  two  hundred 
men.  The  American  loss  was  two  killed  and  seven  wounded.  Captain  Lloyd, 
commanding  the  British  squadron,  finding  himself  unable  to  capture  the  priva- 
teer, soon  after  began  to  cannonade  her.  The  Americans,  finding  further  resist- 
ance useless,  scuttled  and  abandoned  their  vessel,  which  was  soon  after  set  on  fire 
by  the  British. 

The  vessel  having  been  destroyed  in  violation  of  the  neutrality  of  the  port, 
Portugal  became  liable  for  the  damages  sustained,  while  England,  in  turn,  be- 
came liable  to  Portugal.  Conceding  her  liability,  Portugal  at  once  demanded 
redress  from  England,  which  she  failed  to  obtain.  At  the  request  of  the  owners 
of  the  privateer,  the  United  States,  in  1835,  made  a demand  on  Portugal  for  the 
loss.  After  protracted  negotiations,  it  was  finally  agreed,  by  treaty  concluded  on 
the  24th  of  February,  and  ratified  on  the  loth  of  March,  1851,  to  submit  the 
claim  to  arbitration,  and  Napoleon  III,  then  president  of  France,  was  chosen  as 
referee.  On  the  3d  of  November,  1852,  he  rendered  an  award  in  favor  of  Por- 
tugal, which  was  accepted  and  acquiesced  in  by  our  government.  Captain  Reid, 
in  behalf  of  himself,  and  the  owners,  officers  and  crew  of  the  privateer,  then  pre- 
sented a claim  against  the  United  States  for  $131,600.  The  grounds  upon  which 
the  liability  of  the  government  was  based  are  discussed  by  Mr.  O’Conor  with 
great  learning  and  ability.  The  case  was  finally  brought  on  for  argument  on  the 
17th  of  November,  1855,  before  the-United  States  Court  of  Claims  at  Washington, 
present  Hon.  John  J.  Gilchrist,  C.  J.,  Hon.  Isaac  Blackford,  and  Hon.  George 
P.  Scarburgh.  Mr.  O’Conor  was  successful.  The  views  advanced  by  the  great 
advocate  were  afterwards  adopted  by  the  court  which  rendered  judgment  in 
favor  of  his  clients.  The  claimants  were  represented  by  Charles  O’Conor  and 
13 


194 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


Sam.  C.  Reid,  Jr.,  of  New  York;  Hon.  P.  Phillips  of  Alabama;  and  Hon.  Charles 
Naylor  of  Pennsylvania.  Hon.  Montgomery  Blair,  U.  S.  Solicitor,  represented 
the  government.  After  all  the  counsel  had  spoken,  Mr.  O’Conor,  on  the  27th  of 
November,  closed  the  case  for  the  claimants  as  follows  : 

May  it  please  the  Court: — The  claim  now  presented  for 
adjudication  may  be  placed  upon  several  distinct  grounds.  In  the 
first  place,  we  contend  that  the  General  Armstrong  was  employed 
by  her  officers  and  crew  in  the  service  of  the  United  States,  and 
against  the  public  enemy,  under  such  circumstances  that,  on  being 
advised  of  the  facts  and  of  the  great  benefits  which  resulted  there- 
from to  the  country,  it  became  the  government,  as  a matter  of 
equity,  to  adopt  the  act  and  to  indemnify  the  parties  against  the 
expense  incurred. 

Our  second  general  head  embraces  the  following  elements:  The 
General  Armstrong,  whilst  lying  in  the  port  of  Fayal,  was  entitled 
to  absolute  protection  from  the  Portuguese  government.  That 
protection  was  not  afforded;  in  violation  of  the  neutrality  of  that 
port,  she  was  destroyed  by  the  forces  of  a British  squadron;  and 
for  this  delinquency  on  the  part  of  Portugal,  her  owners  had  a 
perfect  right,  by  the  law  of  nations,  to  be  fully  indemnified.  The 
owners  had  themselves  no  legal  capacity  to  prosecute  this  claim 
directly;  but,  on  ’ establishing  its  validity,  they  were  entitled  to 
redress  through  the  action  of  their  own  government  against  that  of 
Portugal.  The  United  States,  accordingly,  investigated  the  claim, 
decided  in  favor  of  its  justice,  assumed  the  control  of  it,  and 
entered  upon  the  duty  of  enforcing  it.  Instead,  however,  of  pros- 
ecuting it  to  an  issue  by  legitimate  means,  the  government  receded 
from  its  duty  in  that  respect,  and  actually  extinguished  the  claim, 
whereby  a right  has  accrued  to  the  owners  to  demand  compensa- 
tion from  the  public  treasury. 

Each  step  in  the  argument  by  which  these  conclusions  are 
arrived  at,  seems  to  us  quite  clear  and  intelligible;  but  the  learned 
solicitor  for  the  government  has  advanced  a great  variety  of  objec- 
tions, and  it  is  principally  in  answering  these  that  we  shall  engage 
the  time  and  attention  of  your  honors. 

I.  Unprecedented  character  of  the  claim,  and  the 

COURT. 

The  absence  of  precedents  has  been  urged  against  us,  and  we 
have  been  called  upon  to  produce  from  the  books  of  the  common 
law  some  instance  of  an  action  brought,  a trial  had,  and  a judg- 
ment rendered  for  the  plaintiff  upon  a claim  like  the.  present.  We 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  195 


cannot  comply  with  this  unreasonable  demand;  but  neither  can  we 
admit  that  our  claim  should  suffer  on  that  account.  The  nation 
itself  is  here  a defendant,  responding  to  the  claim  of  a private 
suitor  for  reparation  of  injuries  sustained — a thing  unparalleled  in 
jurisprudence.  The  court  itself  is  the  first-born  of  a new  judicial 
era.  Consequently,  we  cannot  hope  to  find  among  the  narrow 
rules  and  practical  formulae  which  ordinarily  govern  in  determining 
mere  questions  of  property  between  citizen  and  citizen,  the  lights 
which  are  to  guide  its  judgment.  As  a judicial  tribunal,  it  is  not 
merely  new  in  the  instance;  it  is  also  new  in  principle.  So  far  as 
concerns  the  power  of  courts  to  afford  redress,  it  has  heretofore 
been  fundamental  that  the  sovereign  can  do  no  wrong.  This  court 
was  erected  as  a practical  negative  upon  that  vicious  maxim. 
Henceforth  our  government  repudiates  the  arrogant  assumption, 
and  consents  to  meet  at  the  bar  of  enlightened  justice  every  right- 
ful claimant,  how  lowly  soever  his  condition  may  be. 

Whence  is  such  a tribunal  to  extract  the  principles  by  which  its 
action  is  to  be  governed — by  which  it  shall  test  and  allow  or  dis- 
allow the  claims  which  may  come  before  it  ? In  ordinary  cases  of 
specific  rights  declared  by  some  particular  statute  or  regulation, 
its  path  may  be  easy.  But  in  those  extraordinary  cases  which  are 
dependent  upon  principles  not  hitherto  falling  within  the  judicial 
authority,  which  has  never  been  enforced  against  the  State,  and 
which,  consequently,  courts  have  never  declared  in  their  judgments 
or  illustrated  in  their  opinions,  difficulties  may  be  encountered  at 
the  outset.  To  meet  and  surmount  these,  if  they  exist,  is  one  of 
the  high  and  responsible  duties  devolved  upon  your  honors,  as 
pioneers  in  this  newly  opened  chapter  of  juridical  science. 

Though  without  exact  precedents,  you  are  not  wholly  without 
chart  or  compass.  A reference  to  the  origin  and  growth  of  juris- 
prudence, in  instance  the  most  analogous,  will  furnish  a sufficient 
guide. 

2.  Origin  and  growth  of  jurisprudence. — Classification  of 

RIGHTS  AND  REMEDIES. 

Rights  and  their  correlative  duties  are  divided  into  two  classes, 
that  is  to  say,  the  perfect  and  the  imperfect.  The  only  difference 
between  these  classes  is  in  external  circumstances — intrinsically  or 
morally  there  is  none.  Perfect  rights  are  those  which  may  be  en- 
forced by  established  remedies;  perfect  duties  are  those  the  per- 
formance of  which  may  be  coerced;  a right  of  imperfect  obligation 


196 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


is  one  for  the  enforcement  of  which  no  remedy  is  provided.  Juris 
prudence,  as  administered  by  human  tribunals,  deals  only  with  the 
means  of  enforcing  rights  which  are  recognized  as  perfect;  but  like 
all  moral  sciences,  it  is  capable  of  improvement.  As  the  general 
mind  of  a nation  advances  in  that  freedom  which  is  the  result  of 
increased  knowledge,  the  legislative  authority  will  constantly  en- 
large the  sphere  of  action  assigned  to  jurisprudence,  and  increase 
its  power  of  establishing  justice.  Jurisprudence  is  only  the  means, 
justice  is  the  end.  Jurisprudence  is  of  human  origin;  justice  is  an 
attribute  of  divinity,  pre-existent  of  all  created  things,  eternal  and 
immutable.  Its  authority  is  not  derived  from  any  human  code, 
either  of  positive  institution  or  of  customary  reception;  its  decrees 
are  found  in  the  voice  of  God  speaking  to  the  heart  which  faith 
has  purified  to  receive  and  reason  enlightened  with  capacity  to  un- 
derstand. 

When  thus  aided  by  the  legislature,  jurisprudence  is  enabled  to 
enlarge  the  circle  of  perfect  rights,  by  furnishing,  from  time  to 
time,  new  instrumentalities  for  enforcing  justice.  Est  boni  judicis 
ampliare  jurisdictionem^  is  a sound  and  unexceptionable  maxim; 
for  the  exercise  of  jurisdiction  is  but  giving  to  men  in  a practical 
form  the  behests  of  divine  justice,  and  enforcing  their  observance. 
This  is  well  illustrated  by  the  rise  and  progress  of  the  English  law. 
In  the  lofty  growth  of  equity,  by  the  side  of  its  stunted  rival,  the 
common  law,  we  see  by  what  means  rights  founded  in  justice  and 
conscience,  but  not  yet  recognized  by  positive  law,  may  rise  in 
grade,  acquire  recognition,  and  become  enforceable  by  adequate 
remedies.  In  that  example  this  court  will  find  the  best  lights  for 
its  government.  In  our  early  law  books  we  find  it  urged  and  ad- 
mitted, that  “ every  right  must  have  a remedy.”  But  Lord  Chief 
Justice  Vaughan  stripped  this  common  place  of  all  its  force,  by 
replying,  “where  there  is  no  remedy,  there  can  be  no  right.”  The 
common  law  judges  of  England  always  acted  upon  the  principle 
embodied  in  this  remark.  From  their  rigid  adherence  to  it  arose 
the  necessity  of  a distinct  jurisdiction — the  power  of  equity  to 
compel  an  observance  of  those  duties  which  conscience  enjoined, 
but  which  positive  law  had  provided  no  means  of  enforcing. 

3.  Object  and  purposes  of  legal  tribunals. 

The  ordinary  courts  of  law  are  not  created  to  declare  or  enforce 
justice  in  the  abstract,  or  justice  in  general.*  Their  function  is  to 

' See  note  a to  De  Bode  v.  Regina,  13  Queen’s  Bench  R.  p.  387. 


CASE  OF  THE  BRIG-0 F-WAR  GENERAL  ARMSTRONG.  197 


effectuate  such  human  rights  only  as,  in  the  existing  stage  of  its 
progress,  jurisprudence  is  enabled  to  bring  within  the  sphere  of  its 
remedial  forms,  leaving  all  others  to  be  sought  by  entreaty  and 
yielded  by  free  will.  The  judge  is  obliged  to  dismiss  every  claim, 
however  just,  for  enforcing  which  he  cannot  find  an  appropriate 
writ  in  the  register;  and,  consequently,  the  regret  of  the  bench  and 
a deep  censure  upon  the  defendant  is  often  expressed  in  the  same 
breath  with  a judgment  denying  the  remedy  sought. 

This  was  strikingly  exemplified  in  the  case  of  Jackson  v.  Bar- 
tholomew.* An  honest  farmer  seeing  his  neighbor’s  wheat-stack 
on  the  verge  of  being  consumed  by  fire  in  the  owner’s  absence, 
voluntarily  assumed  the  task  of  saving  it,  and  did  so  at  a slight 
cost.  Reimbursement  being  churlishly  refused,  he  brought  an  ac- 
tion in  a justice’s  court,  and  the  rustic  magistrate,  not  learned 
enough  to  know  that  legal  policy  sometimes  stifles  the  voice  of 
conscience,  decided  in  favor  of  the  plaintiff.  The  defendant  ap- 
pealed; and  when  reversing  the  decision  on  the  ground  that  for  a 
service,  however  beneficial,  rendered  without  a previous  request, 
no  action  lay,  the  Supreme  Court  of  New  York  denounced  the 
defendant’s  conduct  as  “most  unworthy.”  In  this  censure  all 
honest  men  must  concur.  No  one  could  doubt  that,  had  the  owner 
of  the  wheat  been  present  at  the  moment  of  peril,  he  would  have 
requested  aid  and  promised  compensation.  An  honest  man  would 
have  conceded  this,  ratified  his  neighbor’s  kind  intervention,  and 
promptly  repaid  his  expenditure;  but  selfishness  saw  that  this  was 
a duty  of  imperfect  obligation,  and  a callous  conscience  dishonor- 
ably refused  to  perform  it. 

4.  Early  struggles  of  the  English  chancellors  in  fram- 
ing A system  of  equity. 

The  equity  jurisdiction  of  Great  Britain  has  been  considered  as 
an  anomaly  in  legal  science.  Continental  jurists  seem  never  to 
have  comprehended  it;  though  it  could  easily  be  shown  that  no 
civil  society  ever  existed  in  which  there  were  not  some  remediable 
forms  of  injustice  which  lex  non  exacte  definit  sed  arbitrio  boni  virt 
permittit?^  Institutions  which  are  novel  in  form,  will  always  excite 
criticism  and  opposition,  however  harmonious  they  may  be,  in  prin- 
ciple, with  what  has  gone  before.  But  the  difficulties  which  may 
beset  the  path  of  this  court,  at  the  outset  of  its  high  career,  can- 

* 20  Johnson’s  Reports,  p.  28.  ^ Story’s  Eq.  Jur.  §§  8,  9. 


198 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


not  be  greater  than  those  which  surrounded  the  early  English 
chancellors  in  their  efforts  to  mitigate  the  rigor  and  supply  the 
imperfections  of  positive  law.  They  had  no  judicial  precedents  to 
guide  them  in  stilling  the  waves  of  contention;  the  great  unwritten 
law  of  natural  justice  alone  governed.  They  claimed  to  deal  with 
matters  binding  in  conscience  only,  and  the  power  to  enforce  its 
dictates.  At  every  step  they  had  to  contend  with  the  argument 
now  urged  against  us,  that  there  was  no  legal  remedy,  and  conse- 
quently the  law  left  it  optional  with  the  defendant  how  to  demean 
himself  in  the  premises.  As  in  the  present  case,  the  law — the  law 
was  dinned  into  the  ears  of  the  court,  by  the  advocates  of  wrong, 
with  loudness  and  pertinacity;  but  the  clamor  was  unavailing. 
Without  aid  from  precedents,  but  guided  by  principles,  the  courts 
grappled  with  and  mastered  the  devices  of  iniquity.  Justice! 
Equity!  Conscience!  words  without  definition,  and  incapable  of 
being  defined,  alone  prescribed  their  jurisdiction,  and  neither  legal 
nor  political  science  had  any  further  connection  with  the  new  cases 
arising  before  them,  than  to  aid  in  solving  the  question  how  far 
State  policy  would  admit  of  right  being  done  to  the  injured  suitor. 

To  the  precise  extent  which  a due  regard  to  public  policy 
would  admit,  the  masters  of  equity  encroached  upon  the  territory 
of  imperfect  duties,  making  firm  land  wheresoever  they  trod. 
Thus  they  gradually  redeemed  from  the  outlawry  to  which  igno- 
rance or  inexpertness  had  consigned  them,  a large  class  of  imperfect 
rights,  and  enforced  a large  class  of  duties  before  deemed  imper- 
fect— because  not  enforceable — but  which  were  always  obligatory 
in  the  eyes  of  God,  and  were  always  voluntarily  performed  by 
honest  men. 

5.  Character  and  importance  of  the  Court  of  Claims. 

Prior  to  the  institution  of  this  court,  all  rights,  as  against  the 
nation,  were  imperfect  in  the  legal  sense  of  the  term;  every  duty 
of  the  nation  was  a duty  of  imperfect  obligation.  There  was  no 
judicial  power  capable  of  declaring  either;  no  private  person  pos- 
sessed the  means  of  enforcing  the  one  or  coercing  the  other.  These 
rights  may  be  deemed  still  to  remain,  in  one  sense,  imperfect;  for 
the  decrees  of  this  court  cannot  be  carried  into  execution  by  au- 
thority of  the  court  itself.  But  effectual  progress  has  been  made 
toward  giving  form  and  method  to  the  administration  of  justice 
between  the  nation  and  the  individual.  This  court  enables  the 
latter  to  obtain  an  authoritative  recognition  of  his  right.  No  more 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  199 

is  needed;  for  in  no  case  can  a State,  after  such  a recognition, 
withhold  payment  and  yet  retain  its  place  in  the  great  family  of 
civilized  nations.  The  ordinary  jurisdiction  of  the  court  bears  a 
strong  resemblance  to  the  narrow  cognizance  at  common  law;  but 
its  extraordinary  jurisdiction  over  “ all  claims  which  may  be  re- 
ferred to  it  by  either  house  of  Congress,”  extends  its  power  to  the 
utmost  limits  attainable  by  juridical  science  in  its  fullest  develop- 
ment. In  this  aspect,  its  dignity  and  importance  as  a governmental 
institution  cannot  be  too  highly  appreciated.  As  a means  by  which 
rightful  claims  against  the  government  may  be  readily  established, 
and  those  not  founded  in  justice  promptly  driven  from  the  portals 
of  Congress,  it  must  exercise  a most  healthful  influence.  But  we 
are  authorized  to  look  higher  than  the  mere  convenience  of  suitors 
and  the  dispatch  of  public  business.  Enlightened  patriotism  will 
contemplate  other  and  more  important  consequences.  Caprice  can 
no  longer  control.  Here  equity,  morality,  honor  and  good  con- 
science must  be  practically  applied  to  the  determination  of  claims, 
and  the  actual  authority  of  these  principles  over  governmental 
action  ascertained,  declared  and  illustrated  in  permanent  and  abid- 
ing forms.  As  step  by  step,  in  successive  decisions,  you  shall  have 
ascertained  the  duties  of  government  toward  the  citizen,  fixed  their 
precise  limits  upon  sound  principles,  and  armed  the  claimant  with 
means  of  securing  their  enforcement,  a code  will  grow  up,  giving 
effect  to  many  rights  not  heretofore  practically  acknowledged.  In 
it  will  be  found  enshrined  for  the  admiration  of  succeeding  ages  an 
honorable  portraiture  of  our  national  morality,  and  a full  vindica- 
tion of  the  eulogium  recently  pronounced  upon  our  people  by  the 
highest  authority  in  the  parent  State.  “ Jurisprudence,”  says  Lord 
Campbell,  in  the  Queen  v.  Millis,*  “ is  the  department  of  human 
knowledge  to  which  our  brethren  in  the  United  States  of  America 
have  chiefly  devoted  themselves,  and  in  which  they  have  chiefly 
excelled.” 

6.  Power  of  the  court  to  create  remedies,  and  grant 

RELIEF. 

Whilst  we  assert  that  this  court  does  not  stand  super  antiquas 
vias  in  anything  which  concerns  mere  procedure,  and,  consequent- 
ly, that  the  call  for  judicial  precedents  is  idle  and  unreasonable,  we 
admit  that  cases  arising  here  must  be  determined  in  conformity 


* lo  Clarke  & Finnelly,  p.  777. 


200 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


with  established  principles.  It  has  been  truly  said,  that  you  have 
no  power  to  invent  rights,”  but  it  must  be  conceded  that  you  have 
express  power  to  invent  remedies.  The  seventh  section  of  the  act 
creating  the  court,  provides  that  you  shall  prepare  to  be  laid  before 
Congress  for  enactment,  the  requisite  bill  or  bills  in  those  cases 
which  shall  have  received  your  “ favorable  decision,  in  such  form 
as,  if  enacted,  will  carry  such  decision  into  effect.”  This,  accord- 
ing to  Mr.  Justice  Ashhurst,  in  Pasley  v.  Freeman,'  is  the  precise 
mode  of  dealing  with  cases  which  are  without  precedent  in  the 
known  practice  of  judicial  tribunals. 

We  agree  that  you  have  jurisdiction  only  over  that  class  of 
cases  which  are  claims  properly  so  called.  The  applicant  for 
bounty  must  go  elsewhere.  Grace  and  favor,  if  it  is  ever  proper  to 
bestow  them,  must  be  bestowed  as  heretofore,  by  Congress,  without 
your  interference.  But  claims — claims  which  would  be  entitled,  as 
between  individuals,  to  recognition  and  enforcement  according  to 
known  principles  of  law,  or  upon  known  principles  of  equity,  are 
to  be  vindicated  and  established  by  this  court.  We  assert  no  more 
than  this,  except  so  far  as  the  nature  of  things  may  warrant  a prac- 
tical distinction  between  a sovereign  State  and  an  individual.  In 
this  way  the  sphere  of  equity  may,  as  against  the  government,  ad- 
mit of  some  expansion.  In  a case  like  that  of  the  wheat-stack, 
cited  from  Johnson’s  Reports,  a court  constituted  as  this  is,  could 
find  no  difficulty  in  enforcing  the  claim  against  the  government.  If 
a large  quantity  of  public  property,  or  any  other  great  public  inter- 
est, were,  at  this  moment,  in  danger  of  being  sacrificed,  under  cir- 
cumstances rendering  it  impossible  to  apply  to  the  executive  for 
instructions  or  for  the  means  of  saving  it,  we  insist  that  a reference 
of  the  voluntary  salvor’s  claim  would  enable  this  court,  as  keeper 
of  the  nation’s  conscience,  to  award  remuneration.  We  say  that 
government  could  not,  any  more  than  the  owner  of  the  wheat-stack, 
conscientiously  withhold  compensation  in  such  a case;  and  that,  if 
the  claim  should  be  sent  here,  this  court  would  be  bound  to  enforce 
it.  State  policy  may  forbid  that  equity  should  go  so  far  in  a case 
between  individuals  as  to  compel  a man  to  make  a request,  as  it 
were  nimc  pro  tunc.  But  why  may  not  government  ascertain, 
through  a proper  judicial  investigation,  the  existing  and  binding 
force  in  equity  of  a claim  upon  it,  which,  in  a private  case,  no 
honest  man  would  hesitate  to  acknowledge;  which  no  gentleman 
could  repudiate  without  dishonor  ? 


3 T.  R.  p.  63. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  201 


7.  Condition  of  the  republic  in  1812. 

When  war  was  declared  in  1812,  this  republic  was  yet  in  the 
infancy  of  her  power.  We  could  scarcely  be  said  to  possess  either 
an  army  or  a navy.  Though  in  the  achievement  of  our  independ- 
ence we  had  won  high  renown,  yet  physical  strength,  the  only  attri- 
bute which  can  enforce  respect  for  the  rights  of  a nation,  was  not 
ours  to  any  great  extent,  and  was  not  imputed  to  us  by  any.  Our 
commercial  marine  had  often  been  plundered  with  impunity.  Even 
our  ships  of  war  had  not  been  exempt  from  search  and  impress- 
ment. War  with  France,  our  early  friend,  had  failed  to  protect  us 
from  insult,  and  it  was  in  an  absolutely  necessary  defense  of  our  ex- 
istence as  an  independent  State,  that  we  were  compelled  to  venture 
upon  hostilities  with  the  greatest  power  of  ancient  or  modern  times. 
The  invasion  of  our  neutral  rights  in  navigating  the  ocean  induced 
the  measure,  the  vindication  of  them  was  its  immediate  aim  and 
object.^ 

Our  naval  reputation  at  that  time  may  be  judged  by  the  ro- 
mantic temerity  with  which  the  Alert,  a pitiful  little  English  gun- 
boat, in  the  first  month  of  the  war,  bore  down  upon  the  Essex,  a 
32-gun  frigate. 

Perhaps  we  seized  upon  an  opportune  moment,  for  Britain  was 
engaged  in  an  European  war  which  tasked  her  utmost  energies. 
Even  with  this  advantage  on  our  side,  the  contest  was  very  unequal; 
but  when  at  length  the  gigantic  power  of  Napoleon  was  prostrated, 
what  was  our  condition  ? The  patroness  of  France,  under  her  re- 
stored dynasty,  the  foremost  of  a holy  alliance  of  all  monarchical 
Christendom,  with  her  thousand  ships  and  her  victorious  legions 
relieved  from  every  other  occupation,  Britain  stood  prepared  to 
“crush  us  at  a blow.”  Such,  all  will  remember,  was  the  language 
of  the  times;  and  naught  seemed  to  interpose  between  her  resolve 
and  its  execution  but  a brief  time,  as  much  as  might  be  needed  to 
conquer  intervening  space. 

Her  force  was  soon  felt.  The  sacred  capitol  of  our  Union,  the 
spot  consecrated  to  liberty  by  the  immortal  Washington,  fell  into 
the  hands  of  her  mercenaries.  The  thunder  of  her  vauntings  was 
heard  along  our  coasts,  and  at  what  vital  point  her  apparently 
resistless  force  was  next  to  fall  upon  us,  none  could  tell. 


* Annals  of  Thirteenth  Congress,  pp.  1419-1427,  1431. 


202 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


8.  Story  of  the  destruction  of  the  “American 
Privateer.” 

At  that  critical  juncture  ^'September  9th,  1814),  the  General 
Armstrong  set  sail  from  New  York  upon  a cruise  designed  to  harass 
our  powerful  antagonist.  On  the  seventeenth  day  out  she  cast 
anchor  in  the  neutral  port  of  Fayal,  for  the  purpose  of  taking  in  a 
supply  of  water.  Soon  after,  on  the  same  day,  a British  squadron, 
under  the  command  of  Captain  Lloyd,  consisting  of  a seventy-four- 
gun  ship,  a frigate  of  thirty-eight  guns,  and  a sloop  of  war  carrying 
eighteen  guns,  entered  that  port  for  the  same  purpose.  Two  con- 
flicts took  place  between  the  American  privateer  and  a body  of 
armed  men  sent  in  boats  from  the  British  fleet  to  assail  her,  which 
terminated  in  the  destruction  of  the  privateer. 

This  violation  of  neutrality,  and  the  consequent  loss  of  our 
property,  entitled  us  to  demand  compensation  as  claimants  upon 
the  justice  of  Portugal. 

Questions  of  law  have  been  raised  as  to  this  asserted  liability 
of  Portugal.  These  we  must  dispose  of  in  the  first  place. 

9.  Liability  of  Portugal. 

It  is  said  that  Captain  Reid,  having  himself  resorted  to  violence 
and  struck  the  first  blow,  must  be  deemed  the  aggressor,  however 
apparent  it  may  have  been  that  such  resort  was  necessary  to  save 
his  vessel  from  capture.  It  is  also  said,  that  the  obligation  of  a 
neutral  to  make  compensation  in  such  cases  is  not  absolute;  that  if 
a neutral,  at  the  time  and  place  of  the  aggression,  employs  all  the 
means  in  his  power  to  prevent  it,  this  is  all  that  can  be  required. 
Of  course,  in  this  connection,  it  is  conceded  that  if  there  be  negli- 
gence in  providing,  at  such  time  and  place,  the  amount  of  defensive 
force  which  might,  under  all  circumstances,  be  reasonably  required, 
or  if  there  was  a failure  in  the  due  and  effectual  employment  of 
such  force,  from  pusillanimity,  gross  ignorance,  or  want  of  skill  on 
the  part  of  the  neutral,  responsibility  might  ensue.  What  singular 
questions  for  discussion  between  nations  would  arise  in  the  investi- 
gation of  these  points!  In  following  out  its  consequences,  this 
idea  of  limiting  national  responsibility  within  the  compass  of  na- 
tional power,  it  is  said  that  'property  unlawfully  seized  by  a third 
power,  within  the  territory  of  a neutral,  must  be  restored  by  the 
courts  of  the  latter,  in  case  it  should  come  within  their  reach;  but 
that  when  the  property  is  destroyed,  or  for  any  other  reason  cannot 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  203 


be  thus  subjected  to  legal  process,  the  neutral  is  only  bound  to  use 
his  best  exertions  to  procure  compensation. 

To  illustrate  what  is  meant  by  this  employment  of  his  best 
exertions,  it  is  argued  that  a neutral  is  not  bound  to  go  to  war  in 
such  a case;  that  it  would  be  unreasonable  and,  consequently,  un- 
just to  require  a feeble  State  to  involve  itself  in  hostilities  with  a 
powerful  aggressor  merely  for  the  sake  of  obtaining  justice  for  the 
stranger;  that  friendly  negotiation  and  urgent  entreaty  for  compen- 
sation constitute  the  whole  duty  of  a weak  neutral  State,  whose 
territory  has  been  unlawfully  converted  into  a theater  of  war  by  a 
powerful  belligerent. 

Notwithstanding  their  palpable  absurdity,  these  doctrines  are 
gravely  insisted  on.  From  a perusal  of  the  correspondence  be- 
tween the  two  governments,  it  might  be  thought  that  some  of  the 
able  and  patriotic  negotiators  who,  from  time  to  time,  sought  the 
enforcement  of  the  claim  against  Portugal,  conceded  these  doc- 
trines; for  they  condescended,  in  arguing  against  them,  to  discuss 
the  evidence,  relying,  as  they  well  might,  upon  its  insufficiency  to 
excuse  Portugal,  even  if  the  rule  of  law  was  as  contended  for. 
We  shall  adopt  the  same  line  of  argument;  but  we  protest,  at  the 
outset,  against  any  such  inference  as  against  us.  We  do  not  ac- 
quiesce in  any  of  these  doctrines.  They  are  founded  in  the  grossest 
misconception  of  public  law,  and  a singular  blindness  to  the  plain- 
est dictates  of  common  sense.  We  proceed  to  prove  this,  seeking 
thereby  to  establish  that,  in  point  of  law,  our  claim  was  perfectly 
valid  against  Portugal,  until  that  government  was  released  by  the 
acquiescence  of  the  United  States  in  Louis  Napoleon’s  award. 

lo.  The  United  States  could  look  to  Portugal  alone 

FOR  REDRESS. 

England  could  in  no  event  be  held  responsible  to  the  United 
States  or  to  the  aggrieved  parties.  As  between  belligerents  them- 
selves, it  is  the  right  of  each  to  make  war  upon  the  other,  his  sub- 
jects and  property,  wffieresoever  he  can  find  them.  “ A capture 
made  within  neutral  waters  is,  as  between  enemies,  deemed  to  all 
intents  and  purposes  rightful.  It  is  only  by  the  neutral  sovereign 
that  its  legal  validity  can  be  called  in  question.  The  enemy  has 
no  rights  whatever;  and  if  the  neutral  omits  or  declines  to  inter- 
pose a claim,  the  property  (so  captured)  is  condemnable,  jure  belli^ 
to  the  captor.”  “This,”  says  the  Supreme  Court  in  The  Ann,  3d 
Wheaton’s  R.  p.  435,  “is  a clear  result  of  the  authorities,  and  the 


204 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


doctrine  rests  on  well  established  principles  of  public  law.”  True 
it  is,  that  Great  Britain  was  responsible  over  to  Portugal  for  any 
sum  which  she  might  be  obliged  to  pay,  and  hence,  no  doubt,  the 
British  influence  in  procuring  Louis  Napoleon’s  award.  But  that 
was  a qirestion  altogether  between  Portugal  and  Great  Britain;  we 
had  no  claim  whatever  against  the  latter. 

It  is  affirmed,  on  all  hands,  that  belligerents  are  bound  to  ab- 
stain from  hostilities  within  neutral  territory,  and  that  any  violence, 
except  in  self-defense,  committed  by  them  within  such  territory  is 
unlawful.  It  is  unlawful  as  between  the  neutral  and  each  of  the 
belligerents.  The  injured  belligerent  may  claim  indemnity  from  the 
neutral,  the  neutral  may  demand  reimbursement  from  the  aggressor. 
We  refer  to  the  case  last  cited,  and  also  to  i Wheaton,  p.  405;  4 
Wheaton,  p.  52;  Ibid.  p.  298. 

II.  Rights  of  belligerents  in  neutral  territory. 

The  rule  requiring  a total  abstinence  from  hostilities  within 
neutral  territory  has,  of  course,  the  same  limitation  which  is  im- 
posed by  reason  and  necessity  in  every  other  case  where  violence 
is  prohibited.  The  right  of  self-defense  is  rightly  called  the  first 
law  of  nature.  The  arm  of  the  civil  magistrate  cannot  always  be 
extended  to  prevent  injury  to  the  citizen,  and  when  it  is  not  pres- 
ent for  his  defense,  he  is  not  bound  to  submit  unresistingly  to 
death  or  wounds.  When  the  danger  is  imminent,  and  safety  can- 
not otherwise  be  purchased,  the  assailed  party  may  always  defend 
himself,  repelling  force  by  force.  The  same  authorities  which  as- 
sert that  a belligerent  forfeits  all  claim  to  protection  from  a neutral 
sovereign  by  commencing  hostilities  within  his  territory,  admit  this 
right  of  self-defense.  And  this,  let  it  be  noted,  is  not  the  privilege 
of  returning  a blow;  that,  indeed,  is  revenge  or  retribution,  not 
self-defense.  Self-defense  must  foresee,  anticipate,  and  defeat  the 
unlawful  design  whilst  only  threatened  or  mediated.  Nothing  else 
is  defense.  Chief  Justice  Marshall  says,  in  The  Ann,*  that  “whilst 
lying  in  neutral  waters,”  a ship  is  “ bound  to  abstain  from  all  hostil- 
ities, except  in  self-defense.”  Again  he  says,  that  no  vessel  in  such 
waters  “ is  bound  to  submit  to  search,  or  to  account  (to  the  belli- 
gerent) for  her  conduct  or  character.”  In  a case  somewhat  anal- 
ogous to  the  present.  The  Marianne  Flora, “ Mr.  Justice  Story  says, 
in  reference  to  defensive  force  used  by  the  commander  of  a ship 


^ 3 Wheaton,  p.  435. 


® II  Wheaton,  p.  i. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  ^05 


menaced  by  another:  “ He  acted,  in  our  opinion,  with  entire  legal 
propriety.  He  was  not  bound  to  fly  or  to  wait  until  he  was  crippled. 
His  was  not  a case  of  mere  remote  danger,  but  of  imminent,  press- 
ing, and  present  danger.  He  had  the  flag  of  his  country  to  main- 
tain and  the  rights  of  his  cruiser  to  vindicate.”  It  will  be  seen, 
therefore,  that  Captain  Reid’s  acts  in  defense  of  his  vessel  were 
lawful;  that  they  involved  no  breach  of  duty  on  his  part  towards 
Portugal,  and  that  they  in  no  degree  lessened  the  duty  of  Portugal 
to  protect  him. 

12.  A NATION  LIKE  AN  INDIVIDUAL  BOUND  ABSOLUTELY  TO 
DISCHARGE  ITS  OBLIGATIONS. 

What  is  sometimes  called  local  and  temporary  allegiance,  but  is 
more  properly  termed  obedience,  is  due  to  every  government  from 
aliens  and  strangers  sojourning  within  its  jurisdiction.  The  neutral 
State  forbids  hostilities  within  its  territories  between  the  armies  or 
navies  of  belligerents,  precisely  as  the  civil  magistrate  forbids 
violence  between  individual  enemies.  By  his  laws  and  regulations, 
he  absolutely  supersedes  the  law  of  nature,  and  promises  absolute 
protection  in  return  for  obedience.  We  may  admit  the  truism  that 
neither  men  nor  nations  can  go  further  in  the  performance  of  their 
obligations  than  the  employment  of  their  utmost  ability.  But  an 
obligation  like  that  under  consideration  is  never,  in  itself,  theoreti- 
cally, nor  for  any  practical  purpose,  subject  to  any  such  limitation. 
A private  man’s  obligations  are  no  longer  enforceable  in  fact,  when 
his  whole  means  of  payment  are  exhausted;  but  after  that  event 
he  remains  charged  with  the  residue  of  his  indebtedness  precisely 
in  the  same  degree  as  before.  Until  relieved  by  death,  or  released 
by  bankruptcy,  he  is  still  bound  to  his  creditor.  Poverty  and  weak- 
ness may  plead  for  indulgence,  but  neither  can  rightfully  demand  a 
release.  The  obligation  remains.  So  it  is  with  nations;  they  must 
perform  their  duties  or  cease  to  exist.  There  is  no  bankrupt  act 
for  them;  political  extinction  is  their  only  refuge  from  the  penalties 
of  unredeemed  responsibility. 

Although  some  crude  remarks  of  publicists  may  be  found  afford- 
ing a slight  pretext  for  the  argument,  it  cannot  be  maintained,  that 
the  duty  of  a sovereign  to  afford  full  protection  to  the  stranger 
within  his  gates,  whose  presence  he  permits,  is  anything  less  than 
absolute,  or  that  the  duty  in  this  respect  of  a weak  nation  is  any 
less  than  that  of  a strong  and  powerful  one. 

When  a private  individual  breaks  the  peace  and  does  an  injury 


206 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


to  another,  the  sovereign  power  subjects  him,  by  due  process  of 
law,  to  mulcts  and  penalties.  His  whole  estate,  if  necessary,  is  se- 
questered for  the  remuneration  of  the  injured  party.  Precisely  the 
same  measure  of  retribution  is  to  be  meted  out  for  the  like  offense 
when  committed  against  persons  or  property  by  a foreign  nation. 

13.  Portugal  bound  to  prevent  hostilities  within  its 

JURISDICTION. 

Belligerents  are  not  permitted  to  fit  out  ships  of  war  or  augment 
their  force  in  the  ports  of  a neutral;  but  all  nations  allow  their 
ports  to  be  visited  by  the  vessels  of  those  with  whom  they  are  in 
amity,  for  the  purpose  of  obtaining  those  necessaries  of  life  which 
are  equally  useful  in  peace  or  war.  Therefore,  it  was  entirely 
proper  for  the  American  privateer  and  the  British  squadron  to  enter 
the  friendly  port  of  Fayal,  as  they  did,  to  supply  themselves  with 
water.  But  it  was  the  duty  of  both  to  preserve  the  peace  while 
there,  and  that  duty  was  enforced  to  the  utmost  against  the  pri- 
vateer by  the  Portuguese  authorities.  After  the  first  attack  upon 
the  General  Armstrong,  and  in  anticipation  of  the  second.  Captain 
Reid  sought  the  governor’s  permission  for  thirty  of  his  country- 
men, then  on  shore  at  Fayal,  to  come  on  board  and  assist  in  the 
defense  of  his  vessel.  The  application  was  peremptorily  refused; 
and  Louis  Napoleon,  in  his  award,  commends  as  worthy  of  all 
praise  the  act  of  the  governor,  in  thus  effectually  preventing  an 
augmentation  of ‘the  American  force.  We  agree  that  this  was  per- 
forming precisely,  and  to  the  letter,  the  duty  of  Portugal  towards 
England.  But  we  insist,  however  excusable  the  governor  may 
have  been  from  want  of  power,  that  the  supreme  government  of 
Portugal  was  bound  effectively  to  have  prevented  hostilities  against 
those  who  were  restrained  by  its  laws  from  employing  their  own 
means  of  self-defense. 

The  learned  solicitor  asserted,  that  the  Portuguese  government 
was  not  bound  to  protect  strangers,  any  more  than  it  was  bound  to 
protect  its  own  people.  Perhaps  it  was  not.  It  is  the  duty  of 
every  government  to  protect  its  own  people,  and  when  violence  has 
been  committed  upon  them,  to  enforce  redress  from  the  wrong-doer 
to  the  whole  extent  of  such  wrong-doer’s  ability.  The  same  duty 
exists  to  preserve  the  peace  within  neutral  territory  between  bel- 
ligerent nations.  The  reason  is  obvious;  the  local  authority  com- 
pels the  belligerent  parties  to  keep  the  peace,  and  it  is  therefore 
bound  to  protect  them.  This  seems  to  us  so  plain,  so  obvious,  that 


CASE  OF  THE  BRIG  OF-WAR  GENERAL  ARMSTRONG.  207 


no  argument  is  necessary  to  enforce  it.  Indeed,  the  general  propo- 
sition is  not  denied;  we  have  only  to  combat  an  attempt  to  fritter 
it  away  in  practice  by  subtle  distinctions. 

14.  Extent  of  the  liability  of  a neutral. 

The  extent  of  the  liability  upon  the  part  of  the  neutral  power, 
to  furnish  compensation  from  its  own  treasury  for  the  losses  in- 
curred in  consequence  of  its  failure  to  keep  the  peace  within  its 
territories,  is  alone  disputed.  If  full  reparation  is  not  due  to  the 
stranger,  what  is  he  entitled  to?  The  attempts  to  answer  this 
question  are  ludicrous!  It  is  said,  that  if  a vessel  is  captured  in 
neutral  territory,  and  afterwards  comes  within  the  same  territory,  it 
should  be  restored  to  the  original  owner;  but  if  it  is  carried  off  and 
does  not  return  within  the  neutral  territory,  then  the  neutral  is  not 
liable.  If  this  is  true,  then  the  total  destruction  of  property  involves 
no  liability  at  all,  for  the  neutral  cannot  deliver  up  that  which  has 
ceased  to  exist.  As  violence  cannot  always  be  prevented,  what  is 
the  duty  of  the  neutral  in  those  cases  where  destruction  ensues  ? 
The  learned  solicitor  says,  the  nation  whose  territory  has  been  in- 
vaded is  to  remonstrate  with  the  aggressor;  it  is  to  appeal  to  him 
in  the  name  of  justice,  reason  and  friendship,  to  make  amends  to 
the  injured  party.  And  it  is  said,  if  these  means  fail,  the  injured 
party  can  claim  no  further  redress.  Can  this  be  law  ? The  sover- 
eign to  whom  the  application  is  made,  is  the  unrighteous  transgres- 
sor; he  knows  that  the  reparation  sought  is  for  his  enemy.  He 
knows  also  that  he  has  only  to  refuse,  and  the  obligation  of  his 
neutral  friend  will  be  satisfied.  By  a simple  refusal  he  can  close 
the  transaction  and  settle  the  account  forever.  If  this  were  really 
the  extent  of  the  neutral  liability,  the  whole  notion  of  a right  to 
indemnity  would  be  the  merest  farce. 

We  insist  that  the  obligation  of  the  neutral  power  is  to  prevent 
hostilities,  if  practicable;  and,  if  that  be  impracticable,  then  to 
make  compensation  for  the  injury  sustained. 

15.  Such  liability  absolute. 

The  notion  of  limiting  the  duty  to  prevention  or  to  the  employ- 
ment of  such  force  as  may  happen  to  be  at  the  spot  for  that  pur- 
pose, is  extremely  absurd.  It  can  rarely  be  in  the  power  even  of 
the  greatest  States  to  maintain  at  every  point  of  their  territories  a 
force  adequate  to  prevent  violations  of  their  neutrality.  Indeed, 


208 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


when  the  force  exists,  the  local  officer  is  not  always  justifiable  in 
employing  it.  If  the  commander  of  a dozen  British  seventy-four- 
gun  ships,  lying  in  one  of  our  ports,  where  they  had  touched  for 
provisions,  should  seize  a Russian  ship,  refuse  to  surrender  her  to 
the  marshal,  and,  as  Lloyd  did  at  Fayal,  threaten,  in  case  of  inter- 
ference with  his  capture,  to  bombard  the  town  and  slaughter  its 
inhabitants,  would  the  local  authorities  be  bound  to  plunge  at  once 
into  the  horrors  of  irregular  war  ? In  most  cases  the  force  on  the 
spot  would  be  wholly  inadequate  to  effective  resistance.  But  when 
it  happens  otherwise,  we  doubt  the  expediency  of  such  a resort. 
Vastly  less  mischief  would  result,  in  ordinary  cases,  from  leaving 
the  wrong  to  be  redressed  by  the  supreme  power.  Then,  if  war 
should  come,  it  would  be  met  with  fitting  preparation.  The  armed 
warrior,  not  the  women  and  children  of  a peaceful  town,  would 
encounter  its  brunt.  We  deny  that  the  governor  of  the  Azores 
could  properly  have  employed  his  military  force  in  open  war  upon 
the  fleet  of  a powerful  nation,  which  was  not  only  the  friend  and 
ally,  but,  it  may  be  said,  the  protector  of  his  sovereign.  Even  if 
his  force  had  been  adequate,  the  act  would  have  been  rash  and  in- 
judicious. It  is  quite  clear  that  in  such  cases  the  local  authorities 
should  most  generally  submit  to  the  violence,  leaving  it  to  the  su- 
preme government  to  apply  the  proper  remedy.  And  it  is  equally 
clear  that  indemnity  is  the  only  remedial  justice  which  can  ordi- 
narily be  had.  If  the  neutral  State  has  any  duty  to  perform,  it  is 
the  procurement  of  such  indemnity. 

i6.  Such  liability  not  affected  by  the  strength  of  the 

GOVERNMENT. 

In  the  obligations  which  thus  rest  upon  neutrals,  there  is  no 
difference  between  strong  and  weak  nations.  We  commonly  say, 
that  in  the  eye  of  the  law  all  men  are  equal.  So,  in  international 
law,  all  sovereigns  are  on  a perfect  equality.  Consequently  a State, 
however  feeble,  cannot  maintain  its  rank  and  position  in  the  family 
of  nations  without  performing  its  public  duties  When  it  fails  in 
this  respect,  it  must  necessarily  fall  exactly  into  the  same  condition 
as  an  individual  engaged  in  trade,  who,  failing  to  pay  his  debts  and 
to  perform  the  duties  of  his  station,  loses  all  credit  and  position 
among  his  fellow-men.  This  doctrine  is  reasonable;  no  other 
would  be  tolerable.  A feeble  State  has  at  its  command  a suitable 
remedy  for  every  such  case.  When  wronged  by  a powerful  nation 


CASE  OF  THE  BRIG-OF-WAE  GENERAL  ARMSTRONG.  209 


it  may  invoke  the  reprobation  of  mankind  by  a proper  exposition 
of  the  act.  The  force  of  opinion  is  great,  and  nations  have  been 
constrained  to  respect  it  in  the  worst  of  times.  If  this  resort 
should  fail,  it  may  form  an  equal  alliance  with  other  States  of  its 
own  class,  or  it  may  seek  the  protection  of  one  more  powerful.  If 
it  can  be  supposed  that  none  of  those  means  would  enable  it  to 
redeem  its  obligations,  nothing  can  be  clearer  than  that  it  should 
declare  itself  bankrupt  and  relinquish  its  pretensions  to  sovereignty. 

To  prove  that  for  injuries  to  property  sustained  by  a belligerent, 
within  the  territory  of  a neutral,  from  hostilities  there  unlawfully 
prosecuted  against  him  by  his  enemy,  the  neutral  sovereign  is  only 
bound  to  afford  the  measure  of  redress  which  may  be  within  his 
ability,  your  honors  are  referred  to  the  text  of  certain  treaties  be- 
tween the  United  States,  England,  France,  Russia,  and  Holland. 
We  there  find  stipulations  to  the  effect  that  each  nation  engages  to 
use  its  utmost  endeavors  to  obtain  from  the  offending  party  full 
and  ample  satisfaction  for  the  vessel  or  vessels  so  taken,”  or  to 
“ protect  and  defend  by  all  means  in  its  power  the  vessels,  &c.,  and 
restore  the  same  to  the  right  owner.”  These  treaties  are  relied 
upon  as  full  evidence  of  the  sense  entertained  by  the  great  maritime 
States,  as  to  the  extent  of  the  obligations  of  neutrals  in  the  partic- 
ular now  under  consideration.  It  is  claimed  that  they  are  not 
merely  strong,  but  decisive  evidence  of  the  jus  gentium.  We  admit 
the  proposition  in  its  broadest  extent.  It  only  remains,  then,  to 
inquire  what  is  meant  by  the  “ utmost  endeavors  ” of  a nation,  or 
by  the  employment  of  “all  means  in  its  power.”  Our  government 
is  one  party  to  these  treaties.  Do  we,  when  promising  to  use  our 
utmost  endeavors  and  all  means  in  our  power,  intend  to  say  that 
we  will  humbly  pray  for  justice  and  earnestly  expostulate  against 
injustice  ? Does  this  involve  a complete  exhaustion  of  all  the 
means  in  our  power  ? And  if,  indeed,  we  are  so  weak  and  so  de- 
graded as  this,  is  Great  Britain,  is  powerful  and  martial  France, 
with  more  than  forty  millions  of  warlike  subjects,  equally  so  ? 
The  small  kingdom  of  Holland  is  also  a party  to  these  treaties. 
Surely  these  same  words,  in  the  same  treaty,  do  not  mean  one 
thing  as  applied  to  one  party,  and  a different  thing  as  applied  to 
the  other  party.  We  respectfully  insist  that  the  rule,  as  expressed 
in  the  text  of  our  writers  on  international  law,  and  in  these  treaties, 
means  nothing  less  than  that  the  neutral  State  is  bound  to  obtain 
or  to  make  restitution  for  every  outrage  committed  upon  friendly 
nations  within  its  limits,  peacefully  if  it  can,  forcibly  if  it  must. 


210 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


17.  Neither  poverty  nor  weakness  a ground  of  exemption. 

A few  words  in  Mr.  Wheaton’s  comment  upon  these  treaties  are 
thought  to  favor  the  doctrine  of  limited  liability  now  contended 
for.  In  Mr.  Lawrence’s  edition  of  the  Elements  of  International 
Law,  p.  497,  the  author  says:  “They  were  not  bound  to  make 
compensation,  if  all  the  means  in  their  power  were  used  and  failed 
in  their  effect.”  But  he  does  not,  by  example  or  otherwise,  give 
the  least  clue  to  his  notions  concerning  the  means  which  must  be 
used  by  the  “ high  contracting  parties  ” in  order  to  fulfill  the  obli- 
gation created  by  these  words.  Observing  upon  the  jurisdiction 
over  captures  in  neutral  territory  exercised  by  the  admiralty  courts 
of  the  neutral,  he  says,  it  is  “ exercised  only  for  the  purpose  of 
restoring  the  specific  property,  and  does  not  extend  to  the  infliction 
of  vindictive  damages,  as  in  ordinary  cases  of  maritime  injuries.” 
This  sentence  is  the  learned  solicitor’s  leading  authority  for  the 
position,  that  when  the  specific  property  is  destroyed  the  neutral 
has  no  duty  to  perform.  An  important  distinction,  however,  exists 
between  the  obligations  of  a sovereign  power,  which  are  to  be  rec- 
ognized and  performed  through  its  executive,  and  the  much  more 
limited  field  of  admiralty  jurisdiction.  Of  course,  a court  of  ad- 
miralty could  neither  draw  upon  the  public  treasury,  nor  levy  war 
upon  a foreign  power.  But  we  can  find  in  Mr.  Wheaton’s  work  no 
evidence  that  he  ever  intended  to  sanction  the  doctrine  that  sover- 
eign power  can  excuse  itself  from  performing  the  duties  of  sover- 
eignty on  the  plea  of  weakness. 

We  have  been  asked,  whether  we  mean  to  insist  that  Portugal 
was  bound  to  go  to  war?  We  answer,  certainly  not.  Portugal 
owed  us  no  such  obligation.  The  question,  so  far  as  war  is  con- 
cerned, was,  whether  she  owed  that  measure  to  herself  ? Her  obli- 
gation was  to  yield  us  protection,  and  having  failed  in  that,  to  in- 
demnify us.  Whether  she  would  prosecute  a claim  against  Great 
Britain  by  the  sword  or  otherwise,  for  reimbursement,  was  alto- 
gether her  own  affair.  If  she  was  so  weak  or  so  pusillanimous  as 
to  waive  her  rights  in  this  respect,  we  certainly  could  not  complain. 
We  only  say  that  her  high  state  amongst  the  powers  of  earth  re- 
quired her  to  protect  or  indemnify  us,  and  -forbid  her  to  plead 
weakness  or  poverty  as  a ground  of  exemption. 

The  unlimited  liability  of  the  neutral  in  such  cases  is  asserted 
by  the  highest  authorities  on  international  law.  It  is  asserted  in 
the  published  speeches  of  nearly  every  legislator  who  has  spoken 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  211 


upon  this  claim.  All  our  administrations,  without  exception,  have 
maintained  it.  Poitugal  herself  conceded  it  in  1814,  and  even 
Louis  Napoleon  admits  it.  He  says,  in  his  award,  that,  if  Captain 
Reid  had  not  released  her  by  his  own  conduct,  Portugal  was  under 
an  obligation  “ to  afford  him  protection  by  other  means  than  peace- 
ful intervention.”  The  original  liability  of  Portugal  is  therefore 
manifest,  unless  Captain  Reid,  by  some  misconduct  on  his  own 
part,  forfeited  the  protection  which  she  owed  him.  Whether  he  so 
misbehaved,  is  a question  of  fact  which  we  will  discuss  hereafter. 

18.  Government  bound  to  enforce  a subject’s  claim  for 

DAMAGES  AGAINST  A FOREIGN  POWER. 

The  next  question  of  law  is,  whether  the  enforcement  of  this 
claim  against  Portugal  devolved  upon  the  United  States  as  a pub- 
lic duty. 

In  return  for  the  allegiance  claimed  by  the  sovereign,  says  Mr. 
Justice  Blackstone,  the  sovereign  “is  always  under  an  obligation  to 
protect  his  subjects  at  all  times  and  in  all  countries.”  And  that 
this  right  of  the  subject  “can  never  be  forfeited  by  any  distance  of 
place  or  time,  but  only  by  misconduct.”  ^ 

The  Lord  Chancellor  of  England,  on  the  argument  of  Baron  de 
Bode’s  case,^  says:  “It  is  admitted  law  that,  if  the  subject  of  a 
country  is  spoliated  by  a foreign  government,  he  is  entitled  to  ob- 
tain redress  through  the  means  of  his  own  government.  But  if, 
from  weakness,  timidity,  or  other  cause  on  the  part  of  his  own  gov- 
ernment, no  redress  is  obtained  from  the  foreigner,  then  he  has  a 
claim  against  his  own  country.” 

These  are  the  maxims  of  monarchy  at  his  day.  It  was  the  pride 
of  her  who,  in  ancient  times,  gave  law  to  men  and  nations,  that,  in 
the  most  distant  climes  and  among  the  most  barbarous  people,  “ I 
am  a Roman  citizen  ” was  a certain  passport  to  safety.  Shall  it  be 
said  that  our  republic  yields  a less  perfect  protection  to  her  citi- 
zens ? We  trust  not.  Mr.  Justice  Parker,  one  of  the  most  eminent 
of  American  jurists,  recognizes  the  rule  that  in  such  cases  there 
rests  an  “obligation  on  the  government  of  the  United  States  to 
procure  redress  for  its  citizens,  or  itself  to  reimburse  them.”  ® On 

^ Wendell’s  Blackstone,  pp.  370,  371,  and  notes. 

* 16  Eng.  L.  & Eq.  Reports,  p.  23. 

^ Famam  v.  Brooks,  9 Pickering’s  Reports,  p.  239. 


212 


ARGUMEXT  OF  CHARLES  O’CONOR  IN  THE 


this  head,  there  is  no  lack  of  precedents.  Half  the  diplomacy  of 
nations  has  been  devoted  to  obtaining  securities  for  their  merchants 
when  subjected  in  person  or  property  to  the  jurisdiction  of  other 
States;  half  the  treaties  on  record  contain  provisions  for  ascertain- 
ing dues  and  making  compensation  on  account  of  past  failures  in 
this  respect,  and  all  of  them  abound  with  mutual  pledges  of  pro- 
tection for  the  future.  From  the  father  of  his  country  to  our  pres- 
ent chief  magistrate,  no  executive  has  sent  to  Congress  an  annual 
message  unmarked  with  recognitions  of  this  duty.  We  defy  refer- 
ence to  a single  instance  in  which  the  President  has  failed  annually 
to  apprise  Congress  of  his  progress  in  pending  efforts  to  obtain  for 
our  citizens  redress  of  grievances  suffered  by  the  acts  or  omissions 
of  other  nations. 

The  duty  of  our  government  in  this  respect  cannot  be  denied. 
It  is  not  denied.  The  questions  are,  how  far  did  that  duty  extend  ? 
was  there  any  failure  in  performing  it  ? and,  if  so,  is  the  govern- 
ment responsible  for  the  consequences  ? 

19.  The  government  responsible  for  its  failure  to 

ENFORCE  SUCH  CLAIM. 

Responsibility  is  denied  on  many  grounds.  In  the  first  place, 
we  are  told,  the  government  of  the  United  States,  in  prosecuting 
claims  against  foreign  powers  for  redress  of  grievances  suffered  by 
our  citizens,  is  merely  the  agent  of  the  injured  individual;  and,  as- 
suming as  applicable  the  same  rules  which  obtain  in  the  common 
law,  concerning  the  private  relation  of  principal  and  agent,  or, 
more  exactly  speaking,  master  and  servant,  it  is  said  that  the  claim- 
ants did  not  object  to  the  treaty  with  Portugal  before  it  was  made, 
or  afterwards  so  protest  against  it,  or  against  the  action  had  under 
it,  as  to  screen  themselves  from  the  imputation  of  having  ratified 
the  act  of  their  servant  by  implied  consent  or  acquiescence.  It  is 
said  the  subsequent  action  of  the  claimant  amounts  to  acquiescence; 
acquiescence  is  assent;  assent  is  ratification,  and  then  comes,  in 
this  common  maxim  of  servile  law,  “ a subsequent  assent  is  equiva- 
lent to  an  original  command.” 

On  the  other  hand,  and  with  equal  confidence,  it  is  asserted, 
that  the  government  is  the  sole  judge  what  claim  of  the  citizen  it 
will  enforce  ; in  what  manner,  at  what  time,  by  what  means,  and  to 
what  extent,  it  will  enforce  them.  It  may,  says  our  learned  op- 
ponent, relinquish  them,  submit  them  to  arbitration,  and  to  any 
Lind  of  arbitrament  it  judges  to  be  expedient  in  reference  to  the 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  213 


general  interests  of  the  republic;  it  may  accept  a compromise,  or 
it  may  release  them  without  compensation,  or  for  a consideration  of 
beneht  or  convenience  to  the  public.  In  fine,  its  power  over  the 
whole  subject  is  claimed  to  be  absolute  in  the  most  comprehensive 
sense  of  the  word,  no  responsibility  attaching  to  its  action,  what- 
ever that  action  may  be. 

It  is  true,  that  when  laying  down  this  latter  proposition,  the  gov- 
ernment solicitor  became  appalled  by  the  enormity  of  his  own  doc- 
trine. First,  relieving  his  conscience  by  an  empty  admission  that 
it  would  be  wrong,  nay,  iniquitous,  to  sacrifice  a private  right  to  the 
public  convenience,  he  endeavored  to  close  this  part  of  the  discus- 
sion by  asserting  that  nothing  of  the  kind  had  ever  been  done  in 
the  whole  practice  of  the  government.  But  feeling,  as  he  reached 
it,  that  this  assertion  begged  the  very  question  before  the  court,  he 
returned  like  a stout-hearted  champion  to  his  starting  point,  and 
insisted  that  the  power  was  vested  in  our  government  thus  to  deal 
with,  traffic  in,  and  for  its  own  benefit  dispose  of  the  private  right 
of  the  citizen,  without  any  responsibility  whatever. 

The  two  heads  of  exemption  from  liability  thus  advanced  for 
the  government,  are  manifestly  inconsistent.  It  must  be  admitted 
that  they  cannot  stand  together;  we  hope  to  show  that  neither  of 
them  is  well  founded. 

20.  In  its  prosecution,  the  government  is  not  the  agent 

OF  THE  CLAIMANT. 

How  can  the  government  be  an  agent  or  mere  servant,  liable  to 
be  restrained  by  the  master’s  prohibition,  or  affected  by  his  subse- 
quent censure,  and,  at  the  same  time,  possess  absolute  discretionary 
power  over  the  whole  subject,  free  from  control,  restraint  or  respon- 
sibility ? The  inconsistency  is  too  glaring. 

An  individual  despoiled  by  the  rapacity,  or  aggrieved  by  the 
negligence  of  a foreign  power,  cannot  lawfully  wage  war,  or  in  any 
other  form  prosecute  directly  a claim  for  indemnity.  His  only 
remedy  is  to  invoke  the  aid  of  his  own  government.  By  a funda- 
mental rule  of  the  social  compact,  sanctioned  by  immemorial 
practice,  every  community  is  bound  to  afford  this  kind  of  protec- 
tion to  its  membersi  And  when  a sovereign  State,  in  the  perform- 
ance of  this  duty,  appears  as  a prosecutor  for  redress  of  injuries, 
the  claimant  and  respondent  are  equal  in  power  and  dignity.  The 
individual  wrong-doer,  and  the  individual  sufferer,  are  alike  lost 
sight  of.  The  responding  State  cannot  avoid  liability  by  delivering 


214  ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 

up  for  sacrifice  its  agent  or  subject;  neither  is  the  claiming  State 
tO  be  deemed  a mere  agent  of  the  aggrieved  person.  It  does  not 
act  in  the  name  or  by  the  authority  of  the  injured  individual,  but 
in  its  own  name  and  right,  as  ultimate  and  paramount  lord  pro- 
prietor of  all  things,  and  sovereign  of  all  persons,  within  its  juris- 
diction. Between  these  “ high  contracting  ” or  high  contending 
parties  is  the  suit  and  the  trial;  between  them  must  be  the  judg- 
ment, whether  obtained  by  negotiation,  awarded  by  arbitrament,  or 
won  by  the  sword.* 

As  the  respective  nations  are  the  parties,  and  the  only  known  or 
recognized  parties  to  the  controversy,  it  necessarily  follows  that 
any  act  of  the  claiming  power,  which  bars  its  right  of  farther  pros- 
ecuting the  claim,  works  an  extinguishment  of  the  claim  itself;  is, 
in  substance  and  effect,  a release  to  the  respondent. 

The  methods  of  pursuing  such  a claim  are  negotiation,  and  fail- 
ing that,  war,  or,  if  the  respondent  will  consent,  arbitration.  In 
all  cases  which  admit  of  its  application,  the  latter  is  a resort  fa- 
vored by  wisdom  and  humanity.  When  a claim  is  mutually  sub- 
mitted to  arbitrament  and  determined  by  the  arbiter,' that  law  of 
honor  and  good  faith  which  nations  must  obey,^  declares  the  award 
to  be  final,  unless  a just  and  defensible  cause  can  be  assigned  for 
disregarding  it.  If,  upon  its  publication,  neither  party  protest 
against  it,  the  award  becomes  conclusive,  whatever  may  be  its 
moral  or  legal  vices. 

21.  Submission  of  the  claim  to  arbitration  creates  no 

ESTOPPEL. 

In  the  present  case,  a perfectly  valid  claim  against  Portugal  has 
been  destroyed  by  the  action  of  the  government.  We  will  prove 
this  by  the  evidence  before  your  honors.  The  award  of  Louis 
Napoleon  stands  in  our  way,  and  is  relied  upon  as  an  estoppel.  In 
connection  with  our  review  of  the  merits,  we  hope  to  show  that  the 
award  is  void  as  against  us:  first,  for  want  of  jurisdiction;  second, 
ly,  because  the  government  did  not  place  before  the  arbiter,  but  ex- 
pressly withheld  from  his  view,  important  evidence,  which  afforded 
him  an  opportunity  to  decide  upon  facts  from  his  own  notions  or  ex 
parte  stories,  and  sanctioned  his  availing  himself  thereof;  thirdly, 
because  it  refused  us  permission  to  be  heard  before  the  arbiter,  or 
to  present  an  argument  to  him;  a^d  lastly,  because  even  upon  the 


* 5 Howard’s  U.  S.  R.  p.  397. 


* 8 Paige,  p.  534. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  215 


imperfect  proofs  presented  to  him,  the  award  is  manifestly  partial 
and  unjust. 

Pursuant  to  the  treaty  with  Portugal,  by  which  this  claim  was 
to  be  submitted  to  the  arbitrament  of  a third  power,  the  Secretary 
of  State,  on  the  20th  of  March,  1851,  “in  accordance,”  as  he 
states,  “ with  suggestions  made  by  M.  de  Figaniere  ” (the  minister 
of  Portugal)  instructed  Mr.  Hadduck,  our  representative  at  Lis- 
bon, to  prepare  a protocol,  with  certain  documents  annexed,  to  be 
authenticated  by  the  respective  governments,  and  laid  before  the 
arbiter.  The  President  of  the  French  Republic  was  first  named; 
and  in  case  he  should  decline  the  office.  King  Oscar,  of  Sweden, 
was  to  be  chosen  in  his  place. 

This  letter  of  instructions  contains  a very  singular  passage;  it 
is  in  these  words:  “You  will  understand,  of  course,  that  these 
copies  (/.  ^.,  the  papers  to  be  annexed  to  the  protocol)  are  limited 
to  such  communications  as  have  passed  between  the  American 
legation  and  the  Portuguese  government  at  Lisbon,  and  between 
this  department  and  the  Portuguese  legation  in  Washington.”  The 
historical  fact,  that  at  the  time  of  the  occurrence,  and  when  the 
proofs  in  support  of  the  claim  were  first  made  up  and  presented, 
the  Portuguese  government  was  seated  not  at  Lisbon,  but  at  Rio 
Janeiro,  renders  it  easy  to  perceive  why  the  Portuguese  minister 
suggested  this  singular  limitation  of  the  proofs  to  be  laid  before  the 
arbiter.  His  suggestion  was  craftily  made  and  unwarily  adopted. 
Its  effect  was  to  carry  into  the  record  to  be  submitted  to  the  arbiter 
only  so  much  and  such  parts  of  the  evidence  as  happened  to  be  in- 
corporated with  a renewed  correspondence  on  the  subject,  which 
was  commenced  in  1834,  about  twenty  years  subsequently  to  the 
occurrence  of  the  outrage  for  which  redress  was  sought.  We  will 
presently  show  that  this  instruction  caused  to  be  suppressed  at 
least  one  piece  of  evidence  which  was  of  great  force,  and,  as  we 
conceive,  perfectly  conclusive  upon  the  very  point  of  Louis  Napo- 
leon’s judgment.  By  the  12th  July,  1851,  the  Department  of  State 
was  apprised  of  its  mistake,  and,  in  a dispatch  of  that  date  to  Mr. 
Hadduck,  after  calling  his  attention  to  the  restrictive  phraseology 
used  in  his  previous  instructions,  Mr.  Webster  says:  “To  provide, 
however,  against  the  omission  of  any  important  part  of  the  earlier 
portion  of  the  correspondence,  I mean  that  which  passed  in  1814 
and  1815  in  Rio  Janeiro,  where  the  court  of  Portugal  at  that  time 
resided,  and  which  it  could  not  have  been  intended  to  exclude,  I 
transmit  you  herewith  ” copies,  &c. 


216  ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 

The  latter  instructions  were  issued  from  the  Department  of 
State,  at  Washington,  on  the  12th  July,  1851;  but  on  the  9th  day 
of  the  same  month,  three  days  previously,  the  protocol  had  been 
completed  at  Lisbon,  signed  and  sealed  by  the  respective  agents  of 
Portugal  and  of  the  United  States,  and  forwarded  to  the  arbiter. 
This  is  expressly  stated  in  Mr.  Hadduck’s  letter  to  the  State  De- 
partment, dated  17th  July,  1851. 

If  any  important  part  of  the  evidence  was  left  out  by  this  mis- 
adventure in  preparing  the  documents,  it  must  be  confessed  that 
the  case  was  not  properly  prepared.  The  solicitor  has  felt  the 
pressure  of  this  circumstance.  He  could  not  help  feeling  it;  for  we 
have  read  from  the  dispatch  of  July  12th,  1851,  an  express  admis- 
sion by  the  Department  of  its  own  error.  The  answer  now  given 
to  this  objection  is,  that  everything  material  in  the  prior  corre- 
spondence was,  in  some  form,  repeated  in  that  which  was  annexed 
to  the  protocol.  But  the  fact  is  otherwise. 

22.  Government  failed  to  present  the  facts  to  the 

ARBITRATOR. 

Louis  Napoleon’s  award  admits  expressly,  or  impliedly,  every 
proposition  of  law  for  which  we  contend.  So  far  as  the  law  is  con- 
cerned, it  asserts  but  a single  position  against  us,  to  wit:  that  a 
belligerent  who  commences  hostilities  within  the  territory  of  a 
neutral,  thereby  forfeits  all  claim  to  protection;  and  this  we  have 
never  denied.  The  Supreme  Court  of  the  United  States  has  often 
so  decided,  and  we  have  never  set  up  any  pretense  to  the  contrary.^ 
The  point  of  the  award  is,  that  Captain  Reid  and  his  gallant  com- 
panions were  the  first  aggressors.  It  goes  upon  a mere  naked 
question  of  fact.  How  manifestly  important,  then,  was  it  that  the 
contemporaneous  correspondence,  and  all  the  testimony  taken  at 
the  time  and  bearing  on  this  point,  should  have  been  laid  before 
the  arbiter. 

It  seems  that  Commodore  Lloyd,  the  commander  of  the  British 
squadron,  soon  after  the  transaction,  caused  to  be  prepared  and 
verified  by  Lieutenant  Fausset,  an  affidavit  giving  the  British  view 
of  the  facts.  No  full  copy  of  this  affidavit  was  furnished  to  the 
arbiter.  A portion  of  it  is  found  in  the  letter  of  Mr.  James  B. 
Clay,  our  minister  at  Lisbon,  to  Count  Tojal,  Portuguese  Minister 
of  Foreign  Affairs,  dated  November  2d,  1849.  That  part  is  mani- 


* The  Ann,  3 Wheaton’s  R.  p.  435. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  217 


festly  false;  but  great  aid  in  developing  its  falsehood  would  almost 
necessarily  have  resulted  from  a review  of  its  whole  contents.  Here 
was  a serious  failure  on  the  part  of  our  government  in  its  obligation 
to  properly  collect  and  present  the  proofs. 

Immediately  after  the  occurrence  at  Fayal,  the  Marquis 
D’Aguiar,  the  Portuguese  minister  of  foreign  affairs,  addressed  a let- 
ter to  Lord  Strangford,  the  minister  plenipotentiary  of  Great 
Britain,  resident  at  the  court  of  Rio  Janeiro,  in  which  he  denounced 
the  outrage  upon  the  General  Armstrong  as  an  “ audacious  ” and 
an  “unprovoked  attack.”  He  also  called  upon  the  British  govern- 
ment to  make  “ satisfaction  and  indemnity,  not  only  to  the  subjects 
of  Portugal,  but  for  the  American  privateer,  whose  security  was 
guaranteed  by  the  safeguard  of  a neutral  port.”  In  the  same  letter, 
the  Portuguese  minister  “ nails  to  the  counter,”  as  a base  false- 
hood, the  pretense  of  Captain  Lloyd,  embodied  in  Lieutenant 
Fausset’s  affidavit,  and  which  Louis  Napoleon  has  sought  to  con- 
secrate as  truth,  thereby,  as  far  as  in  him  lay,  falsifying  American 
history  and  dishonoring  the  American  name. 

Thus  speaks  the  Marquis  D’Aguiar:  “ His  Excellency  (Lord 
Strangford)  will  likewise  observe  the  base  attempt  of  the  British 
commander,  at  the  time  he  commenced  the  unprovoked  attack  on 
the  American  privateer,  to  attribute  those  violent  measures  to  the 
breaking  of  the  neutrality  on  the  part  of  the  American  in  the  first 
instance,  by  repelling  the  armed  barges  that  were  sent  for  the  pur- 
pose of  reconnoitering  that  vessel,  advocating,  with  the  most  mani- 
fest duplicity,  that  they  (the  Americans)  were  consequently  the 
aggressors;  but  what  appears  still  more  surprising,  is  the  arrogance 
with  which  the  British  commander  threatened  to  consider  the  terri- 
tory of  his  royal  highness  (the  prince-regent  of  Portugal)  as  ene- 
mies, should  the  governor  adopt  any  measures  to  prevent  them 
from  taking  possession  of  the  American  privateer,  which  they  sub- 
sequently plundered  and  set  on  fire.” 

Some  allusions  to  this  letter  were,  indeed,  contained  in  the  cor- 
respondence submitted  to  the  arbiter;  but  no  copy  of  it,  or  of  these 
important  parts  of  it,  was  laid  before  him.  This,  the  learned  solic- 
itor tells  us,  was  an  unimportant  omission,  because  the  Portuguese 
minister  of  State  could  only  judge  from  the  evidence;  that  his  view 
of  it,  if  erroneous,  was  not  conclusive  upon  his  government,  and 
that  Louis  Napoleon  was  bound  to  exercise  an  independent  judg- 
ment on  the  evidence  itself.  Admitting,  for  the  sake  of  the  argu- 
ment, that  all  the  facts  were  laid  before  Louis  Napoleon  (which 


218 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


was  not  the  case),  it  cannot  be  maintained  that  this  letter  did  not 
contain  important  matter  for  his  consideration.  He  had  assumed 
to  decide  a contested  fact  of  considerable  antiquity.  The  wit- 
nesses were  not  personally  produced  before  him;  no  truth-eliciting 
cross-examination  could  be  had,  no  oral  dissection  or  discussion  of 
the  proofs  was  allowed.  Was  it  an  unimportant  fact  that  the  de- 
fendant in  the  cause — Portugal  herself — had,  through  her  highest 
authorities,  solemnly,  and  at  the  very  moment  of  the  transaction, 
acknowledged  the  truth  of  Captain  Reid’s  statement,  and  stamped 
as  base  duplicity  and  falsehood  the  story  of  Captain  Lloyd  and  his 
lieutenant  ? Contemporaneous  opinion  is  strong  evidence  as  to 
ancient  facts.  When  it  is  considered  that  this  opinion  came  from 
our  opponent  in  the  cause  under  arbitrament,  and  that,  at  the  time 
of  pronouncing  it,  Portugal  was  not  only  the  friend  and  the  ally, 
but,  it  may  be  said,  a dependent  of  Great  Britain,  its  force  as  evi- 
dence cannot  be  too  highly  appreciated.  If  not  technically  con- 
clusive, who  will  say  that  it  was  not  very  persuasive  ? 

Here  was  another  grievous  failure  in  the  duty  of  duly  present- 
ing the  proofs  in  support  of  the  claim  on  Portugal. 

There  was  another,  and,  as  we  regard  it,  still  a greater  failure. 
It  is  a very  fair  presumption  that  Captain  Lloyd  conceived  the  de- 
sign of  seizing  the  Armstrong  for  a special  purpose.  To  facilitate 
aggressions  upon  our  coast  and  in  our  rivers,  small  vessels  were 
greatly  needed.  The  desire  to  supply  this  need  has  always  seemed 
the  most  probable  solution  of  Lloyd’s  flagitiously  illegal  conduct. 
It  so  happens  that  one  document  included  in  the  Rio  Janeiro  cor- 
respondence, and  wholly  omitted  in  the  protocol,  distinctly  proves 
this  motive.  Immediately  after  the  principal  or  midnight  combat, 
William  Greaves,  the  British  consul  at  Fayal,  addressed  to  the  Por- 
tuguese governor  of  the  Azores  a letter  in  which  is  found  this 
statement:  “ The  (British)  commander  will  send  a brig  from  his 
squadron  to  fire  on  the  American  schooner;  and  if  the  said  brig 
should  encounter  any  hostilities  from  the  castle,  or  your  Excellency 
should  allow  the  masts  to  be  taken  from  that  schooner  (the  General 
Armstrong),  he  will  regard  this  island  as  an  enemy  of  his  Britannic 
majesty,  and  will  treat  the  towm  and  castle  accordingly." 

Lloyd  threatened  to  bombard  the  town  and  castle  of  a friend 
and  ally  of  his  sovereign,  in  case  the  authorities  should  permit  the 
Americans  to  dismantle  or  destroy  their  own  vessel  so  as  to  unfit 
her  for  service.  Anxiety  to  save  an  enemy  from  suicide  proves 
some  other  motive  than  revenge.  The  desire  to  reduce  him  to 
captivity  and  servitude  can  alone  account  for  it. 


CASE  OF  THE  BTIIG-OF-WAR  GENERAL  ARMSTRONG.  219 


All  these  important  proofs  having  been  suppressed,  it  cannot  be 
said  that  the  claimant’s  case  was  fairly  tried  before  Louis  Napoleon. 
According  to  the  recorded  admission  of  that  great  jurist  and  states- 
man, Daniel  Webster,  contained  in  his  official  letter  of  July  12th, 
1851,  it  was  submitted  in  an  imperfect  and  improper  manner. 

The  failure  to  arrange  the  proofs  properly  so  called,  separately 
from  the  mere  arguments  contained  in  the  correspondence,  seems 
to  have  misled  Louis  Napoleon  as  to  the  nature  of  the  submission, 
or  to  have  furnished  him  with  a pretense  for  assuming  a power 
which  our  government  could  not  have  intended  to  confer. 

The  whole  frame  of  his  award  implies  that,  in  respect  to  the 
facts,  he  did  not  consider  himself  bound  by  the  documentary 
proofs  annexed  to  the  protocol,  and  that  he  assumed  the  power  of 
ascertaining  them  aliunde. 

For  this  purpose,  we  may  fairly  presume  that  he  rambled 
whithersoever  he  pleased — into  British  history  or  into  British  table- 
talk.  He  recites  that  he  proceeded  to  judgment  “after  having 
caused  himself  to  be  correctly  and  circumstantially  informed  in  re- 
gard to  the  facts  which  have  been  the  cause  of  the  difference,  and 
after  having  minutely  examined  the  documents,  duly  signed  in  the 
names  of  the  two  parties,  which  have  been  submitted  to  our  in- 
spection by  the  representatives  of  both  powers.” 

These  words  certainly  imply  that  he  sought  proof  of  the  facts 
elsewhere,  and  afterwards  examined  the  protocol  with  its  attached 
documents,  as  an  additional  or  supplemental  act.  He  did  not  ob- 
tain what  he  calls  his  correct  and  circumstantial  information  solely 
and  exclusively  by  a perusal  of  these  papers. 

Thus  it  appears  that,  after  having  submitted  the  claim  to  an 
arbiter,  the  government  failed  in  its  first  duty  pro^novent.  It  not 
only  omitted  to  produce  the  evidence  in  its  power,  but  expressly 
withheld  it  at  the  instigation  of  the  adverse  party.  It  also  furnished 
the  partial  umpire  with  an  excuse  for  assuming  powers  not  granted 
to  him,  and  not  intended  to  be  conferred  upon  him. 

23.  Claimant  forbidden  to  argue  his  cause  before 
Napoleon. 

To  cap  the  climax  of  injustice  in  the  measures  by  which  this 
claim  was  sacrificed,  the  claimants  were  refused  a hearing  before 
the  arbiter,  or  even  the  liberty  of  presenting  to  him  a written  argu- 
ment in  support  of  their  claim.  This  was  one  of  those  flagitious 
violations  of  justice  against  which  every  honest  mind  must  revolt. 


220 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


To  reject  without  a hearing  may  be  well  enough,  as  between  a 
despot  and  his  bond-slave;  it  is  not  within  the  capacity  of  a judge. 
Precedent,  authority,  reason  and  sentiment  unite  in  condemning  it. 

The  Supreme  Court  of  Pennsylvania,  in  Falconer  & Montgom- 
ery,* says:  “The  plainest  dictates  of  natural  justice  must  prescribe 
to  every  tribunal  the  law  that  ^ no  man  shall  be  condemned  un- 
heard.’ It  is  not  merely  an  abstract  rule  or  positive  right,  but  it 
is  the  result  of  wise  experience,  and  of  a wise  attention  to  the  feel- 
ings and  dispositions  of  human  nature.  An  artless  narrative  of 
facts,  a natural  and  ardent  course  of  reasoning  will  sometimes  have 
a wonderful  effect  upon  a sound  and  generous  mind;  an  effect 
which  the  cold  and  minute  details  of  a reporter  can  neither  pro- 
duce nor  supplant.  Besides,  there  is  scarcely  a piece  of  written 
evidence,  or  a sentence  of  oral  testimony,  that  is  not  susceptible  of 
some  explanation  or  exposed  to  some  contradiction.  To  exclude 
the  party,  therefore,  from  the  opportunity  of  interposing  in  any  of 
these  modes  (which  the  most  candid  and  the  most  intelligent  of 
disinterested  persons  may  easily  overlook),  is  not  only  a privation 
of  his  right,  but  an  act  of  injustice  to  the  umpire,  whose  mind 
might  be  materially  influenced  by  such  interposition.” 

The  case  of  Sharp  v.  Bickerdike  ^ arose  upon  an  award  made  in 
Scotland.  The  award  was  not  impeached  for  any  other  fault  than 
the  neglect  of  the  arbitrator  to  hear  the  party,  under  a mistaken 
belief  that  he  had  consented  to  waive  that  right.  The  positive  law 
of  Scotland  was,  that  no  award  should  be  set  aside,  at  the  instance 
of  either  party,  for  any  cause  or  reason  whatever,  unless  it  was  for 
bribery,  falsehood  or  corruption  in  the  arbitrator.  Lord  Eldon, 
delivering  the  judgment  of  the  House  of  I.ords,  said,  that  by  the 
great  principle  of  eternal  justice,  which  was  prior  to  all  these  acts, 
&c.,  it  was  impossible  that  the  award  could  stand.  He  added: 
“Even  if  he  had  decidedly  he  had  not  decidedly  justly." 

In  these  cases,  and  in  Elmendorf  v.  Harris,  decided  by  the  court 
of  der7iier  resort,  in  New  York,®  the  awards  in  question  W'e^'e 
unanimously  set  aside  upon  this  principle.  Following  this  line  of 
precedent,  the  Court  of  Queen’s  Bench,  in  the  very  recent  case  ?f 
Oswald  V.  Grey,*  annulled  an  award  for  this  causej  saying:  “A 
more  glaring  departure  from  the  rules  that  ought  to  regulate  the 

* 4 Dallas’  Reports,  p.  233. 

* 3 Dow’s  Parliamentary  Reports,  p.  I02. 

® 23  Wendell,  p.  633. 

'23  Eng.  Law  & Eq.  R.  p.  88. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  221 


proceedings  of  persons  sitting  in  the  character  of  judges,  it  is  im- 
possible to  conceive.” 

24.  The  award  invalid  since  it  turned  upon  a question 

NOT  SUBMITTED  TO  THE  ARBITRATOR. 

Another  and  conclusive  objection  to  this  award  appears. 

As  has  been  before  observed,  it  goes  upon  a mere  question  of 
fact;  that  is  to  say,  the  question  whether  the  Americans,  on  the 
occasion  in  question,  resorted  to  force  before  they  were  assailed,  or 
subjected  to  any  indignity  or  peril  ? 

It  never  could  have  been  the  intent  of  the  executive  or  the 
Senate  in  framing  the  treaty  with  Portugal,  to  submit  that  question 
to  arbitrament.  A total  insensibility  to  national  honor  would  have 
been  manifested  in  adopting  such  a course. 

The  correspondence  between  Portugal  and  the  United  States 
shows  that  the  former  denied  its  liability  on  legal  grounds.  It  was 
affirmed,  on  the  part  of  Portugal,  that  the  duty  of  a State  to  afford 
protection  to  foreigners  within  its  territory  was  not  absolute;  that, 
if  such  State  employed  the  means  of  protection  in  its  power,  it  was 
not  responsible  for  the  inefficacy  of  such  means.  The  absurdity  of 
this  position,  as  applicable  to  the  case  in  hand,  has  been  already 
shown;  but  suffice  it  to  say,  in  this  connection,  that  Portugal 
gravely  insisted  on  it.  The  treaty  (Art.  2)  recites,  as  the  cause  of 
the  arbitrament,  that  “ the  high  contracting  parties  had  not  been 
able  to  come  to  an  agreement  upon  the  question  of  public  law  in- 
volved in  the  case  of  the  American  privateer.  General  Armstrong, 
destroyed  by  British  vessels  in  the  waters  of  the  island  of  Fayal,  in 
September,  1814.” 

25.  A SINGLE  QUESTION  OF  LAW  ALL  THAT  WAS  INTENDED  TO 

BE  REFERRED. 

This  recital  proves  that  the  intent  was  to  refer  a question  of 
law  only,  not  to  refer  a question  of  fact.  Only  two  questions  of 
law  can  be  imagined  as  arising  in  the  case:  first,  the  silly  pretense 
of  immunity  from  the  duties  of  sovereignty,  on  the  ground  of 
weakness,  set  up  by  Portugal;  and,  secondly,  whether,  if  the  Gen- 
eral Armstrong  was  the  first  assailant,  she  had  thereby  forfeited  her 
claim  to  protection.  The  latter  point,  as  we  have  shown,  was  well 
settled  in  the  affirmative  by  our  own  courts,  and  was  never  dis- 


222 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


puted  by  us;  consequently  it  is  plain  that  but  one  question  of  law 
was  in  dispute.  This  question  it  might  have  been  the  part  of 
wisdom  to  refer,  for  no  third  power  could  ever  have  decided  it 
against  us.  Louis  Napoleon  himself  was  obliged  to  determine  it  in 
our  favor. 

Did  the  Department  of  State,  when  preparing  the  protocol,  in- 
tend to  submit  the  question  of  fact  to  Louis  Napoleon  ? We  have 
shown  that  the  treaty  gave  it  no  authority  so  to  do;  but  we  ask 
whether,  through  misapprehension  of  his  powers,  temporary  inad- 
vertence, or  from  any  other  cause,  Daniel  Webster,  in  the  exercise 
of  his  high  functions  as  representative  of  the  honor  and  interests 
of  his  country,  did  really  intend  to  submit  to  the  arbitrament  of  a 
third  power  the  question  of  fact,  whether  the  British  or  the  Ameri- 
cans were  the  aggressors  in  the  memorable  combat  of  September, 
1814,  at  Fayal  ? We  cannot  believe  that  such  an  intention  existed. 
We  could  not  admit  it  without  abandoning  forever  our  deep  and 
unfeigned  admiration  of  that  illustrious  jurist  and  statesman.  Such 
an  act  would  have  been  the  extreme  of  folly.  It  involved,  by  an 
inevitable  necessity,  the  loss  of  the  claim  and,  what  was  far  worse, 
a lasting  reproach  upon  our  country. 

26.  The  question  as  to  who  was  the  aggressor  a matter 

OF  NATIONAL  HONOR  OR  SHAME. 

In  that  midnight  conflict,  a little  American  privateer  of  two 
hundred  and  forty  tons  burthen,  carrying  seven  guns  and  ninety 
men,  defeated  the  force  of  a whole  British  fleet,  killing  of  her  as- 
sailants, according  to  the  English  historians  themselves,  within  one- 
sixth  as  many  men  as  Britain  lost  in  the  great  naval  victory  off  Cape 
St.  Vincent. 

The  strength  of  this  comparison  will  be  best  exhibited  by  the 
facts.  In  that  action,  there  were  fifty  ships  of  war  engaged,  and 
Britain’s  immortal  Nelson  captured  the  Santissima  Trinidada  of 
136  guns,  and  three  other  three-deckers. 

Making  due  allowance  for  the  disparity  of  the  forces  engaged, 
looking  with  severely  exact  justice  to  precise  facts,  and  judging  by 
results,  there  is  not  a transaction  in  the  whole  history  of  naval  war- 
fare which  reflects  such  signal  lustre  upon  the  gallantry  of  the 
actors  as  the  defense  of  the  General  Armstrong.  True,  the  heroes 
who  perished  in  the  fight  had  moldered  into  dust,  and  no  monu- 
ment honored  their  resting  places.  Those  who  survived  it  had 


CASK  OK  TIIK  JiRIO-OK-WAR  OENKKAL  ARMSTRONG.  223 


nearly  all  };assecl  from  earth,  and  the  very  few  yet  alive  were  near 
the  close  of  their  earthly  jjilgrimage,  and  were  jjining  in  want  and 
penury — were  memorials  of  that  neglect  which  is  proverbially  the 
recom[)ense  of  jHiblic  benefactors.  Jlut  the  glory  of  their  achieve- 
ments was  not  forgotten.  It  belonged  to  the  American  name;  it 
liad  irradiati.'d  our  naval  diadem  for  forty  years,  and  had  become  a 
matter  of  history.  Was  an  American  vSenate  likely  to  forget  its 
duty  t(;wards  these  recollectirms  ? Was  Daniel  Webster  the  man  to 
deliver  over  this  bright  ]>age  in  our  annals,  to  be  obliterated  by  the 
dictum  of  an  JCuropean  j^rince  ? 

Honor  cannot  attend  or  result  from  unlawful  violence.  Unable 
tf;  deny  the  ]diysical  results,  llritain  had  sought  to  stigmatize  the 
conduct  of  (’aptain  Reid  as  an  unjjrovoked  aggression  in  breach  of 
I’ortuguese  neutrality,  contrary  to  the  law  of  nations,  and  deserv- 
ing only  the  contempt  and  abhorrence  of  mankind.  Desperate  as 
may  seem  the  folly  of  imj)uting  to  this  little  cock-boat  aggressive- 
ness against  a whole  fleet,  any  resort  was  preferable  to  a confession 
of  the  facts.  Accordingly  tliis  ])itifully  absurd  tale  was  placed 
uj>on  the  records  of  the  Hritish  Admiralty,  and  thence  transferred 
to  the  annals  of  the  royal  navy.  Rritain  had  sat  in  judgment  on 
the  fact,  in  her  national  caj)acity,  and  sanctioned  this  story  with  her 
high  aj>i)roval.  On  the  other  hand,  the  government  of  the  United 
Stales,  in  all  its  (lej)artments,  and  under  several  successive  admin- 
istrations, had  testified  its  full  belief  in  the  statement  of  Captain 
Reid.  I'rom  these  sources,  the  literature  of  the  respective  nations 
had  taken  opposing  opinions,  d'he  resiiective  historians  of  ]lritain 
and  of  the  United  States  stood  before  the  world  in  direct  conflict  as 
to  the  fact,  and  were,  of  course,  to  descend  to  future  times  as  rival 
claimants  of  credibility  on  this  ([uestion.  Its  solution  involved  no 
matter  of  mere  jiecuniary  interest,  territorial  aggrandizement  or 
oth(?r  worldly  profit  of  any  kind;  it  was  a (question  of  national  honor 
or  shame. 

Did  any  nation  ever  submit  such  a (question  to  the  arbitrament 
of  an  umpire?  d’o  admit  it  to  be  a ([uestion  for  trial  was  to  em- 
lirace  infamy?  As  well  might  a high-toned  gentleman  charged  with 
some  scandalous  act  by  a known  and  avowed  enemy,  refer  the 
slander  to  a mutual  friend,  with  authority  to  decide,  upon  proofs, 
whether  or  not  he  was  a scoundrel.  Honor  decides  such  questions 
for  itself,  reposes  on  its  own  known  rectitude  for  a jirotection,  or 
vindicates  itself  by  iiiore  active  means.  It  never  reiioses  in  a trus- 
tee, nn  agent,  or  an  umpire,  the  power  of  consigning  it  to  infamy. 


224 


ARGUMENT  OF  CHARLES  O’ CONOR  IN  THE 


27.  There  was  no  question  of  fact  before  Napoleon. 

One  of  our  reasons  for  denying  that  Mr.  Webster  could  ever 
have  intended  to  refer  to  Louis  Napoleon  the  question  of  fact 
whether  the  Armstrong  was  the  aggressor,  is  that  the  result  must 
necessarily  have  been  against  his  country  and  his  fellow-citizens. 

It  is  a principle  of  universal  law,  that  the  affirmative  must  be 
proven  by  a preponderance  of  evidence.  Equal  colliding  forces 
produce  a state  of  rest,  as  equal  weights  in  the  scales  produce  an 
equipoise.  It  follows  that  whenever  the  opposing  proofs  as  to  a 
disputed  fact  are  equal,  the  party  who  asserts  the  fact  must  fail. 
This,  however  true  in  theory,  is  rarely,  if  ever,  applied  in  practice. 
Some  circumstance  affecting  the  credit  of  a witness  or  of  a docu- 
ment produced  on  the  one  side  or  the  other,  almost  always  turns 
the  scale;  and  the  verdict  or  decision  goes,  accordingly,  upon  the 
theory  of  full  credence  being  given  to  one  side  and  denied  to  the 
other.  Thus  a judicial  forum  decides  between  parties,  and  resolves 
the  doubtful  point  upon  a nice  scrutiny  of  the  proofs,  responding 
according  to  its  view  of  the  right,  notwithstanding  that  its  decree 
may  possibly  wound  the  honor  of  one  party  and  his  witnesses,  by 
impliedly  imputing  to  them  intentional  misrepresentation. 

Now  it  so  happens,  as  any  one  can  in  a moment  see,  that  if  the 
question  of  fact  as  to  who  was  the  first  aggressor  was  to  be  sub- 
mitted in  this  case,  the  United  States  would  hold  the  affirmative, 
and  the  witnesses  would  be  in  direct  conflict.  Consequently  a 
judgment  could  not  be  formed  in  our  favor  without  thus  implicat- 
ing the  witnesses  of  our  adversary;  whilst,  on  the  other  hand,  the 
arbiter  could  decide  against  us  upon  the  mere  philosophical  prin- 
ciple that,  a perfect  balance  being  produced,  it  did  not  become 
him,  as  a friend  and  ally  of  each,  to  disbelieve  either. 

The  treaty  provided  that  the  submission  should  be  made  “ to  a 
sovereign  potentate  or  chief  of  some  nation  in  amity  with  both  the 
high  contracting  parties.’"  It  was  well  known  that  the  true  party 
for  whom  Portugal  appeared  in  the  case  was  Great  Britain.  What- 
ever Portugal  might  be  compelled  to  pay  to  us.  Great  Britain  would, 
of  course,  be  held  to  reimburse.  But,  besides  all  this — and  hence 
this  bitter,  long-continued,  unyielding  opposition  to  this  claim  by 
Portugal,  her  ally — the  honor  of  Great  Britain  was  deeply  involved 
in  the  issue.  Great  Britain,  for  a wonder,  was  then  in  amity  ’* 
with  the  whole  civilized  world.  She  was  on  terms  of  the  closest 
amity  with  both  the  chrysalis  royalty  of  France  and  with  Oscar  of 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  225 


Sweden,  the  only  potentates  contemplated  by  the  protocol  of  sub- 
mission. The  witnesses  on  our  side  were  private  citizens.  They 
had  not  even  an  official  recognition  to  connect  them  with  our  gov- 
ernment, in  the  technical  consideration  of  an  European  sovereign, 
so  that  discrediting  them  might  be  deemed  a direct  offense  to  the 
nation.  On  the  other  hand,  the  opposing  witnesses  were  public 
officers,  servants  and  agents  of  Great  Britain.  Without  taking  into 
view,  as  additional  reasons,  or  make-weights,  toward  the  same  con- 
clusion, the  intimate  relations  for  mutual  support  and  protection 
which  exist  between  the  sovereigns  of  Europe,  is  it  not  manifest  to 
the  most  simple-minded  observer,  that  no  one  of  them,  consistently 
with  a prudent  regard  for  his  own  high  interests,  could  ever  as- 
sume the  office  of  arbiter  upon  a matter  of  fact  between  two  inde- 
pendent sovereign  powers,  and  pronounce  a decree  stigmatizing  the 
public  agents  of  either  as  perjured  ? 

28.  Circumstances  under  which  the  Armstrong  fired  the 

FIRST  GUN. 

It  was  never  denied  that  Captain  Reid  fired  the  first  gun. 
Prima  facie^  then,  he  was  the  aggressor.  To  justify  this  and  fix 
upon  the  British  forces  the  inception  of  hostilities,  it  was  necessary 
to  prove  affirmatively  the  menacing  approach  of  an  armed  enemy. 
This  was  an  affirmative  of  the  class  which  it  is  most  difficult  to 
establish  by  proof.  Captain  Reid  and  his  men  could  do  no  more 
than  swear  to  it,  as  they  did,  and  by  way  of  confirmation  affirm 
the  distinct  fact  that  the  fire  was  returned  from  the  British  boats. 
But  the  defeated  commandant  of  the  assailing  force  could  easily 
deny  this,  and  he  had  denied  it.  Nor  was  this  a case  in  which, 
from  the  nature  of  the  thing,  affirmative  testimony  has  a superiority 
over  negative.  There  was  no  room  for  mistake  or  oversight  on  the 
British  side.  Lieutenant  Fausset  knew  whether  his  men  were 
armed  or  not;  and  he  swore  they  had  no  arms.  Of  course,  if  they 
had  no  arms,  they  could  not  have  returned  the  American  fire.  In 
addition  to  the  rule  that  the  affirmative  must  be  proved  by  a pre- 
ponderance of  testimony,  there  was  a principle  in  close  affinity  to 
it,  which  any  one  could  see  led  inevitably  to  our  defeat  in  the 
umpirage.  As  to  the  hostile  intent  of  the  approaching  British 
flotilla.  Captain  Reid  could  only  act  upon  circumstances  affording 
a presumption  of  such  intent. 

Had  he  abstained  from  firing  any  longer  than  he  did,  it  is  prob- 
able that  his  deck  would  have  been  covered  with  an  overwhelming 
15 


226 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


armed  force  before  a blow  was  struck.  Perhaps  no  wound  would 
ever  have  been  given  on  either  side.  Perhaps  every  privateersman 
would  have  been  suddenly  seized  and  pinioned  by  superior  num- 
bers, and  the  gallant  little  Armstrong,  instead  of  perishing  glorious- 
ly amid  her  vanquished  enemies,  might  have  been  employed  to  carry 
rapine  and  desolation  to  our  defenseless  homes  and  firesides.  As 
it  was  always  admitted  that  in  the  first  combat  Captain  Reid  re« 
pelled  the  assailing  force  whilst  it  yet  held  no  more  commanding 
position  than  that  of  a menace,  proof  of  an  aggressive  intent  by 
those  in  the  British  boats  was  indispensable  to  our  success;  and  the 
proof  on  that  head  could  only  be  circumstantial.  On  the  other 
hand.  Lieutenant  Fausset  could  swear  positively  that  no  such  in- 
tention existed.  He  could  say  Captain  Reid  was  mistaken,  and 
thus,  in  the  most  polite  style  imaginable,  entitle  his  side  to  the  im- 
perial award. 

How  hopelessly  desperate,  then,  was  the  case — treated  as  a 
question  of  fact — considering  who  was  the  arbiter  and  the  conse- 
quences to  result  from  the  decision. 

In  this  connection,  we  do  not  question  the  equal  fitness  of 
Louis  Napoleon  as  an  arbiter  with  any  other  European  potentate. 
It  was  not  to  be  expected  that  any  sovereign  of  Europe  would 
convict  the  British  officers  of  perjury.  He  could  not  otherwise 
conform  to  the  known  policy  of  his  class  than  by  finding,  as  he  did, 
that  the  fact  was  not  proved.  Consequently  it  would  have  been  a 
gross  error  to  submit  a fact  of  this  kind  to  the  determination  of 
such  an  arbiter.  He  could  not  afford  to  act  judicially,  to  scrutin- 
ize the  evidence  fairly,  or  to  determine  the  fact  justly.  It  would 
have  been  not  only  a grievous  error  in  national  policy,  but  a palpa- 
ble failure  in  duty  to  the  country,  and  to  the  claimants.  No 
American  who  regards  the  honor  of  his  country  will  ever  admit 
that  the  Senate  of  the  United  States  intended  to  submit  to  any 
earthly  arbitrament  the  question  of  national  honor  which  Louis 
Napoleon  has  assumed  to  decide.  No  friend  or  honest  admirer  of 
Daniel  Webster  will  ever  admit  that  he  could  have  so  far  mistaken 
the  import  of  the  treaty  as  to  suppose  that  he  had  power  to  submit  it, 
or  that  he  could  have  been  so  blind  to  the  dictates  of  reason  and 
common  sense,  or  so  ignorant  of  the  motives  of  State  policy  which 
govern  European  potentates,  as  not  to  have  seen  that  such  submission 
was  equivalent  to  what  lawyers  call  a retraxit.  He  never  could  have 
intended  thus  to  sacrifice  at  a blow  the  private  interests  committed 
to  his  change,  and  the  national  honor  he  so  deeply  cherished. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  227 


29.  Napoleon’s  award  should  have  been  rejected  as  void 

FOR  WANT  OF  JURISDICTION. 

If  we  are  right  in  this,  it  will  be  seen  that  Louis  Napoleon’s 
assumed  jurisdiction  over  the  facts  was  an  usurpation  of  power  not 
granted.  Upon  this  ground  alone  his  award  was  wholly  void  in 
every  legal  and  moral  sense,  and  should  have  been  rejected  by  our 
government  immediately  after  its  publication. 

The  tendency  to  usurpation  was  pretty  strong  in  the  mind  of 
the  arbiter  at  the  time,  as  may  be  perceived  by  reference  to  con- 
temporaneous events.  But  in  reference  to  this  case,  he  not  only 
assumed  powers  not  granted,  but  undertook  to  overrule  and  nega- 
tive the  very  facts  agreed  upon  by  the  high  contracting  parties,  and 
which,  of  course,  he  was  expressly  forbidden  to  adjudge. 

In  the  second  article  of  the  treaty,  it  is  stated  in  so  many 
words,  that  the  General  Armstrong  was  destroyed  by  British  ves- 
sels in  the  waters  of  the  island  of  Fayal.”  (Article  2.)  Yet,  the 
award,  in  reciting  this  part  of  the  submission,  studiously  omits  the 
words  ‘‘by  British  vessels,”  and,  in  its  finding  upon  the  facts,  it 
states  that  the  act  of  destruction  was  by  Captain  Reid  in  conse- 
quence of  the  hostile  demonstration  made.  Even  if  it  was  within 
his  judicial  province  to  set  aside  a fact  agreed  by  the  parties,  he 
could  not  justify  this  finding.  The  proofs  are  clear  that  Captain 
Reid  merely  fired  a shot  through  the  vessel’s  bottom,  in  order  to 
sink  her  in  the  harbor,  thus  placing  her  for  the  time  beyond  the 
enemy’s  reach,  and  reserving  the  chance  of  raising  her  at  a future 
period.  But  the  British,  being  thus  baulked  in  their  original  de- 
sign, set  fire  to  her,  and  thereby  effected  her  complete  destruction. 

30.  When  the  award  was  accepted,  the  liability  of  Por- 

tugal WAS  extinguished,  and  the  liability 
OF  OUR  government  AROSE. 

Thus  it  will  be  seen  that,  independently  of  the  deeper  moral 
objection  to  it,  Louis  Napoleon’s  award  was  not  entitled  to  any 
respect  whatever,  and  was  wholly  void,  because  he  based  it  upon  a 
question  of  fact  not  submitted  to  him.  It  may  be  well,  therefore, 
to  state  here  the  legal  grounds  on  which  we  insist  that  its  accept- 
ance wrought  an  extinguishment  of  our  claim  against  Portugal,  and 
gave  rise  to  a claim  in  its  place  against  the  treasury  of  the  United 
States.  We  had,  originally,  a just  claim  for  indemnity  upon  Portu- 
gal, which,  under  the  circumstances,  it  was  the  imperative  duty  of 


228  ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 

our  government  to  enforce,  and  which,  as  against  us,  the  govern- 
ment had  no  right  to  surrender  or  annul.  The  power  of  prosecut- 
ing that  claim  was  vested  in  the  government  alone,  and  consequent- 
ly the  award  of  Louis  Napoleon  thereon — whether  just  and  lawful 
or  not — on  being  accepted  by  the  department  to  which  is  intrusted 
our  foreign  affairs,  worked  a complete  extinguishment  of  the  claim 
as  against  Portugal.*  That  acceptance  deprived  us  of  all  recourse 
except  upon  the  public  treasury.  We  claim  that  the  award  of 
Louis  Napoleon  was  partial  and  unjust;  we  have  shown  that  it  was 
void  for  want  of  jurisdiction,  because  not  warranted  by  the  sub- 
mission, and  that  it  was  void  as  against  us,  because  important 
evidence  was  withheld  from  him,  and  because  the  right  to  be  heard 
in  support  of  our  claim  before  himself  or  his  council  was  denied 
to  us. 


31.  Ground  of  the  liability  of  the  government. 

The  withholding  of  evidence,  the  denial  of  a hearing,  and  the 
unwarrantable  acceptance  of  the  award,  are  relied  upon  as  involv- 
ing a liability  of  the  government,  because  they  are  not  acts  of  a 
subordinate  official  who  might  be  personally  responsible  at  law  to 
the  citizen  for  the  injury  produced  by  his  malversation,  but  are 
acts  of  State,  performed  by  the  supreme  executive  in  the  exercise 
of  a high  discretionary  authority  which  no  court  could  control  or 
correct,  at  the  suit  of  an  individual.  Hence  the  liability  of  the 
nation. 

An  opinion  of  Mr.  Attorney-General  Cushing  has  been  cited, 
showing  that  the  government  is  not  responsible  for  the  acts  of 
marshals,  collectors,  pilots,  and  other  subordinate  officers  who  are 
appointed  to  facilitate  the  business  operations  of  the  citizens.  We 
acquiesce  unhesitatingly  in  this  opinion.  But  it  has  no  application 
to  the  President,  the  heads  of  departments,  or  other  high  public 
functionaries  who  are  themselves  the  government.  These  officers 
are  intrusted  with  the  power  of  representing  the  nation  and  acting 
for  it.  They  cannot  be  arraigned  in  a court  of  law,  or  elsewhere 
made  responsible  to  the  private  citizen  who  may  be  injured  by  acts 
of  State,  performed  through  their  agency.  For  these  the  nation 
itself  must  answer,  in  its  collective  and  sovereign  capacity.  Indeed, 
the  departments  constantly  recognize  this  rule.  Collectors  of  the 
customs  are  in  the  daily  habit  of  seizing  goods  and  performing 


' See  Secretary  Marcy’s  Letter,  dated  Dec.  loth,  1854. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  229 


Other  acts  of  direct  interference  with  the  property  of  individuals,  in 
conformity  with  instructions  from  the  treasury  founded  upon  a 
construction  of  the  law  which  is  subsequently  condemned  by  the 
courts  as  erroneous;  and,  as  a necessary  result,  they  are  frequently 
made  liable  for  damages  and  expenses.  On  all  such  occasions,  it 
is  the  established  practice  to  indemnify  the  subordinate  out  of  the 
public  treasury.  Though  selected  with  especial  reference  to  their 
fitness  for  high  station,  the  heads  of  departments  are  mortal,  and 
must  sometimes  err  through  haste,  inadvertence  or  misconception. 
When  such  errors  occur,  there  being  no  other  remedy,  it  is  alto- 
gether just  that  the  government  should  make  the  reparation. 
Though  the  act  directed  to  be  done  is  unlawful,  though  the  direc- 
tion itself  is,  of  course,  a violation  of  law,  still  it  is  impossible  to 
conduct  public  affairs,  at  all  times,  with  absolute  accuracy,  and 
there  must  be  somewhere  a discretionary  power  to  act  for  the  pub- 
lic upon  emergencies  and  in  doubtful  cases.  When  that  discretion 
is  rightly  exercised,  the  nation  takes  the  benefit;  when  erroneously 
exercised,  it  should  sustain  the  resulting  loss. 

These  same  principles  apply  here.  Our  claim  is  against  the 
public  treasury,  because  the  injury  complained  of  resulted  from 
acts  of  the  government  itself,  performed  through  its  highest  func- 
tionaries, in  the  exercise  of  an  irresponsible  discretion.  The  maxim 
respondeat  superior^  is  eminently  applicable  to  such  cases.  For  acts 
of  State,  the  State  itself  must  answer.  The  government  of  the 
United  States  did  not  protest  against  the  award  of  Louis  Napoleon, 
but,  on  the  contrary,  expressly  declared  its  acquiescence  through 
the  department  of  State,  and  thus  released  Portugal  from  all 
further  responsibility.  Had  the  award  been  rejected,  we  should 
now  stand  in  the  same  attitude  which  we  had  occupied  for  forty 
years.  We  would  still  hold  a valid  and  subsisting  claim  against 
Portugal,  neither  abandoned  nor  released  by  our  government,  and 
still  in  due  course  of  prosecution  by  the  proper  authority.  Although, 
in  such  a condition  of  things,  we  might  well  murmur  at  the  delay, 
perhaps  mere  delay,  even  amounting  to  neglect,  would  not  entitle 
us  to  maintain  here  or  elsewhere  a pecuniary  demand  against  the 
United  States. 

The  right  to  reject  the  award  of  a mutual  friend  has  been  exer- 
cised by  our  government,  and  is  fully  recognized  in  the  law  of 
nations.  Vattel  says,  that  where  there  is  flagrant  partiality,  or 
where  the  arbitrator  exceeds  his  power  by  determining  a matter 
not  submitted  to  him,  it  will  not  bind.  “ If,  by  a sentence  mani- 


230 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


festly  unjust,  and  contrary  to  reason,  the  arbitrator  has  stripped 
himself  of  his  quality,  his  judgment  deserves  no  attention.” — Book 
II,  ch.  i8,  § 239. — In  the  same  section,  that  writer  illustrates  his 
views  by  very  apposite  instances.  He  says:  In  case  of  a vague 

and  unlimited  submission,  in  which  the  parties  have  neither  pre- 
cisely determined  what  constitutes  the  subject  of  the  quarrel,  nor 
marked  out  the  limits  of  their  opposite  pretensions,  it  may  often 
happen  that  the  arbitrator  may  exceed  his  power  and  pass  judg- 
ment on  what  has  not  really  been  submitted  for  his  decision.”  In 
this  case  the  submission  was  framed  without  the  requisite  precision 
as  to  the  point  submitted,  or  Louis  Napoleon,  without  that  apology, 
transcended  the  authority  granted.  In  either  case,  the  award 
should  have  been  rejected. 

32.  Review  of  the  evidence  as  to  who  was  the 

AGGRESSOR. 

We  will  now  consider  the  evidence  with  a view  to  the  question 
whether  Captain  Reid  was  the  aggressor. 

Here  Mr.  O’Conor  read  from  James’  Naval  History  of  Great  Britain,  vol.  6, 
p.  349,  which  may  be  regarded  as  the  British  version,  and  the  conflicting  author- 
ity from  Ingersoll’s  History  of  the  Second  War,  vol.  i,  pp.  44,  45.  He  referred 
to  the  affidavits  of  Lieut.  Faussett  and  Captain  Reid,  which  were  also  conflict- 
ing, the  former  averring  that  the  men  in  the  boat  first  fired  upon  by  the  privateer 
had  no  arms,  the  latter  alleging  that  they  were  armed,  and  when  warned  refused 
}o  keep  off.  He  then  showed  that  Reid’s  statements  were  correct,  and  were 
corroborated  by  the  facts  and  circumstances,  and  that  the  English  version  was 
inconsistent  throughout.  He  then  continued: 

The  primary  fact  in  dispute  was  this:  Did  Faussett  approach 
the  Armstrong  peacefully  and  unarmed,  in  a single  small  boat,  to 
ask  a question,  or  did  he  approach,  with  several  large  boats,  there- 
by displaying  and  employing  such  a force  as  to  justify  apprehen- 
sions of  a hostile  attack?  Louis  Napoleon  concedes  it  to  be 
clear,”  that  this  first  approach  to  the  General  Armstrong  was  by 
“ some  English  long-boats,  commanded  by  Lieutenant  Robert 
Faussett  of  the  British  navy.”  Disbelieving  him  as  to  the  main 
and  primary  fact,  what  honest  court,  sitting  to  determine  this  case 
between  man  and  man,  could  have  found,  upon  his  evidence,  that 
his  crews  were  not  armed,  in  opposition  to  the  unimpeached  oath 
of  Captain  Reid  and  his  officers,  confirmed  by  the  voice  of  all 
indifferent  spectators  ? The  whole  story  is  a palpable  falsehood. 
The  case  is  eminently  one  for  the  application  of  the  rule  falsus  in 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  231 


uno  falsus  in  omnibus.  Any  impartial  and  competent  arbitrator 
would  have  applied  it. 

Nothing  but  Louis  Napoleon’s  total  incapacity  to  sit  in  judg- 
ment on  the  case,  in  consequence  of  his  political  relations  with 
Great  Britain — the  party  most  deeply  implicated  in  the  transaction 
“—can  account  for  the  award. 

Upon  reason  and  authority,  the  claim  against  Portugal  appears 
to  have  been  well  founded  in  fact  and  valid  in  law.  We  had,  by 
the  law  of  nations  and  the  principles  of  justice,  an  absolute  right 
to  full  indemnity  from  that  country.  That  right  has  been  sacri- 
ficed, and  the  remaining  question  is  this:  Are  we  remediless  ? 

33.  The  arbitration  never  ratified  by  the  claimants. 

Whilst  we  deny  the  authority  or  force  of  this  award,  and  question 
the  whole  course  of  the  government  in  respect  to  the  reference,  we 
wish  to  be  understood  as  standing  not  in  the  least  behind  the 
learned  solicitor  in  our  admiration  for  the  character  of  Daniel 
Webster.  That  great  man  had  been  just  called  into  the  State  de- 
partment, upon  the  sudden  and  wholly  unexpected  advent  of  a new 
administration.  General  Taylor’s  warlike  spirit,  as  it  was  sup- 
posed, had  brought  the  country  to  the  verge  of  a war  with  Portu- 
gal. The  civilian  who  succeeded  him  preferred  peace,  and,  of 
course,  his  judgment  controlled.  Acting  in  harmony  with  the 
policy  of  the  new  executive,  and  perhaps  without  having  given  to 
the  subject  that  careful  examination  which  it  required,  Mr.  Webster 
assented  to  the  reference  for  the  sake  of  peace.  In  this  way,  the 
rights  of  the  claimants  were  sacrificed  for  what  was  deemed  the 
public  weal. 

But  it  is  con,tended  that  the  United  States,  in  prosecuting  these 
claims  against  foreign  powers,  acts  only  as  agent  for  the  individuals 
aggrieved,  and  that,  as  principals,  we  have  ratified  the  act  of  sub- 
mission to  Louis  Napoleon. 

We  have  already  denied,  in  fofo,  the  applicability  of  this  doc- 
crine.  There  can  be  no  implied  ratification,  because  the  case  is 
not  one  of  principal  and  agent.  The  nation  has  the  whole  power; 
it  is  the  principal,  not  the  agent.  In  defending  the  rights  of  the 
citizen,  it  is  no  more  an  agent  than  a father  is  in  avenging  an  insult 
offered  to  his  child.  It  acts  in  vindication  of  its  own  honor  and 
sovereignty.  But  we  need  not  have  denied  the  doctrine,  for  there 
is  no  evidence  of  ratification. 

On  the  first  rumor  that  an  arbitrament  was  in  contemplation. 


232 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


Mr,  Sam.  C.  Reid,  Junior,  the  counsel  for  the  claimants,  addressed 
to  the  Secretary  of  State  a letter  inquiring  of  its  truth,  and  praying 
to  be  heard  on  the  subject  before  any  such  action  should  be  had. 
The  gallant  old  sailor  himself,  who  had  never  known  fear  of  per- 
sonal danger,  shrank  with  a wisely  instinctive  horror  from  the  bare 
thought  of  submitting  his  own  and  his  country’s  honor  to  the  arbi- 
trament of  an  European  despot.  The  keenness  with  which  he  felt 
upon  this  subject  is  but  thinly  veiled  by  the  modest  courtesy  of  his 
respectful  remonstrance.  Let  it  be  read;  it  deserves  a place  in  the 
annals  of  his  country.  Let  the  personal  characteristics  of  the 
hero,  as  exhibited  in  peaceful  action,  adorn  the  same  page  which 
bears  to  future  times  his  illustrious  deeds.  They  will  alike  chal- 
lenge admiration  and  reflect  honor  upon  all  who  may  be  so  happy 
as  to  imitate. 


“New  York,  August  26,  1850. 

“Hon.  Daniel  Webster: 

“A/r, — By  the  recent  daily  journals,  rumors  are  rife  that  the 
claims  of  the  General  Armstrong  are  about  to  be  referred  to  some 
power  for  arbitration.  This  mode  at  best  being  considered  some- 
what problematical,  we,  the  claimants,  would  respectfully  suggest, 
whether  or  not  a settlement  by  treaty  or  convention  may  not  in 
your  opinion  be  preferable,  as  being  most  likely  to  enable  us  to  ob- 
tain our  demands  without  the  risk  of  a failure  ? 

“ Feeling,  as  we  do,  that  we  are  in  very  safe  and  very  able  hands, 
we  have  no  great  fears  for  the  future,  if  we  be  allowed  to  compare 
what  you  have  already  done  for  us  with  what  is  to  be  expected  on 
future  occasions. 

“ After  so  much  negotiation,  controversy,  and  anxiety,  for  a 
long  series  of  years,  we  now  look  to  you,  sir,  with  every  confidence 
for  a final  and  favorable  termination  of  this  affair.  And  should 
you  be  pleased  to  honor  us  with  your  views,  we  shall  esteem  our. 
selves  under  additional  obligations. 

“With  great  respect,  &c., 

“ S.  C.  Reid, 

“ Late  Commander  of  the  G.  A., 

“ In  behalf  of  the  claimants.” 

Before  either  of  these  letters  reached  the  department  of  State, 
the  negotiations  had  been  brought  to  a close,  and  consequently  oui 
government  could  not  recede.  This  had  been  done  v/ithout  notice 
to  the  claimants,  without  either  knowledge  or  assent  on  their  part, 
and  it  was  contrary  to  their  wishes. 

As  it  was  too  late  to  prevent  the  arbitrament,  the  claimants  did 
all  that  remained  in  their  power.  They  solicited  permission,  first. 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  233 


that  young  Mr.  Reid,  their  counsel,  might  proceed  to  France  with 
competent  authority  to  obtain  a due  advocacy  of  the  case.  This 
was  not  granted.  They  next  had  prepared  a written  argument, 
and  prayed  that  it  might  be  laid  before  the  arbiter.  This  request 
was  also  denied.  It  seems  to  have  been  understood  that  it  was 
beneath  the  dignity  of  a monarch  to  hear  the  party.  As  an  act  of 
State,  this  refusal  may  have  been  according  to  established  forms, 
but,  if  it  was,  how  manifest  becomes  our  position  that  the  case 
never  should  have  been  referred.  Royal  grants  usually  run  ex 
certa  scientia  et  mero  77iotu.  This  royal  arbitrament  seems  to  have 
been  in  like  manner  understood  by  all  parties,  except  the  unsubmit- 
ting claimants,  as  an  appeal  to  absolute,  irresponsible  monarchical 
volition! 

These  rejected  solicitations  for  common  justice,  and  these  dis- 
regarded remonstrances  constitute  the  whole  evidence  relied  upon 
to  prove  a ratification.  If  they  have  that  effect,  we  ask,  in  the 
name  of  conscience  and  reason,  what  could  the  claimants  have 
done  in  the  premises  which  would  not  have  been  a ratification  ? 
Was  it  necessary  to  levy  war  against  the  government  ? Was  it  nec- 
essary to  appear  at  the  State  department  and  rail  at  the  secretary 
like  a common  scold  ? Ought  we  to  have  hired  penny-a-liners  and 
filled  the  journals  of  the  day  with  invective  ? Surely  none  of  these 
things  will  be  pretended.  We  objected  to  the  policy  pursued. 
When  overruled,  and  no  other  resource  was  left  to  us,  we  resolved, 
in  humble  submission  to  the  omnipotence  of  the  State  department, 
to  make  the  most  of  a bad  position  and  to  devote  every  means  in 
our  power  to  the  attainment  of  success. 

It  may  be  presumed  that  our  objections  to  the  submission  are 
not  relied  upon  as  acts  of  ratification.  Perhaps  that  point  is  mainly 
founded  on  our  prayer  to  be  heard  before  Louis  Napoleon.  What 
else  could  we  have  done  at  that  stage  of  the  affair  ? Silence  would 
have  been  deemed  assent.  Any  omission  on  our  part  to  do  and 
suggest  whatever  was  in  our  power  and  which  could  possibly  con- 
duce to  success,  would  have  been  disrespectful  toward  our  govern- 
ment, and  might  justly  have  been  condemned.  Desperate  as  the 
case  may  have  seemed  to  us,  it  did  not  appear  so  to  the  govern- 
ment, and  surely  we  were  right  in  straining  every  nerve  to  secure 
success.  The  spirit  which  animated  our  gallant  tars  in  the  mid- 
night combat  at  Fayal  secured  neither  safety  nor  entire  success; 
but  it  inflicted  upon  the  enemy  an  irreparable  wound.  It  reflected 
lustre  upon  our  country.  The  same  wise,  gallant,  persevering  and 


234 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


indomitable  spirit  presided  over  this  last  effort  to  sustain  a righteous 
cause  sinking  under  the  combined  influence  of  artifice  in  the 
enemy,  partiality  in  the  judge  and  oversight  in  the  prosecutors. 
It  did  not  succeed;  but  this  court  will  not  permit  it  to  prejudice 
the  man  who  made  it.  On  the  contrary,  it  was  on  his  part  a per- 
formance of  duty.  Instead  of  justifying  his  condemnation  to  per- 
petual silence  as  a willing  participator  in  this  unwise  submission,  it 
is  precisely  the  act  which  secures  him  still  a standing  in  court  as  a 
claimant,  and  entitles  him  this  day  to  ask  a judicial  sentence  against 
the  unjust  arbiter.  Judex  damnatur  cum  nocens  ahsolvitur. 

There  is  something  most  irrational  in  the  pretense  that  this 
prayer  for  leave  to  be  heard,  although  rejected,  was  a ratification  by 
us  of  all  that  had  been  done.  A gladiator  cast  naked  and  weapon- 
less into  the  arena,  would  instinctively  call  for  a sword  as  the  lion 
approached  him.  According  to  our  learned  adversary’s  notions  of 
justice,  this  last  prayer  of  the  predestined  victim,  although  cruelly 
denied,  would  be  an  approval  of  his  sentence  to  the  unequal  con- 
flict. We  dismiss,  without  further  comment,  this  idlest  of  all  idle 
pretenses. 

34.  Captain  Reid  bound  in  law  and  honor  to  pursue  the 
COURSE  HE  did. 

It  has  been  urged  that  Captain  Reid  ought  to  have  surrendered; 
that  he  would  have  suffered  no  dishonor  in  yielding  without  a blow. 
Suppose  it  to  be  so,  was  there  neither  merit  nor  honor  in  the  op- 
posite course  ? But  we  cannot  agree  with  the  learned  solicitor  in 
this.  An  act  of  Congress  passed  at  the  commencement  of  the  war, 
directed  the  President  to  prepare  instructions  and  to  cause  a copy 
to  be  delivered  to  the  captain  of  every  private  armed  cruiser.’  Our 
copy  was  lost  in  the  Armstrong.  Knowing  that  a line  of  conduct 
very  different  from  tame  and  unresisting  submission  was  com- 
manded, we  have  sought  for  the  original  among  the  archives  of  the 
department,  but  without  success.  The  same  remorseless  enemy 
who  destroyed  the  copy  at  Fayal,  at  about  the  same  moment  de- 
stroyed the  original  record  at  this  capitol.  We  cannot,  therefore, 
produce  it,  but  we  submit  that  this  court  should  infer  the  fact. 
The  instructions  undoubtedly  were  to  use  the  utmost  exertions  to 
defeat  the  military  and  naval  forces  of  the  enemy,  whenever  and 
wherever  encountered.  The  ninth  section  of  the  same  act  gave 


2 Statutes  at  Large,  p.  761,  § 8. 


CASE  OF  THE  BRIG-OF-\YAR  GENERAL  ARMSTRONG.  235 

a bounty  to  each  person  on  board  when  any  privateer  burned,  sunk 
or  destroyed  an  armed  vessel  of  the  enemy  of  equal  force. 

Pensions  are  also  allowed  by  the  acts  of  Congress  to  every  offi- 
cer, seaman  and  marine  belonging  to  a privateer,  disabled  in  any 
engagement  with  the  armed  vessels  of  the  enemy.* 

This  point  ought  not  to  have  been  urged  by  the  counsel  for  the 
government.  Indeed  the  fact  that  it  is  here  urged  with  a hope  of 
success,  considering  the  ground  of  the  arbiter’s  decision  against  us, 
gives  great  and,  we  conceive,  conclusive  force  to  a distinct  equity 
entitling  us  to  compensation  from  the  public  treasury. 

The  facts  and  circumstances  in  proof  show  clearly  that  Captain 
Lloyd’s  object  was  to  possess  himself  of  the  General  Armstrong, 
for  the  purpose  of  employing  her  against  the  unprotected  villages 
and  hamlets  upon  our  sea-board. 

We  have  shown  that  the  first  approach  was  by  many  boats,  and 
that  the  men  in  them  must  have  been  armed.  Louis  Napoleon  ad- 
mits the  former  fact;  indubitable  results  make  manifest  the  latter. 
The  letter  of  Consul  Graves  proves  Lloyd’s  desire  to  capture  the 
vessel  in  an  uninjured  state,  and  the  first  approach,  as  proved  by 
Faussett  himself,  shows  a design  to  carry  her  by  surprise.  His 
pinnace,  as  he  calls  it,  when  fired  into,  was  immediately  alongside 
of  the  Armstrong,  so  near  that  he  employed  a boat-hook  to  direct 
her  motions. 

These  circumstances  are,  we  say,  entirely  satisfactory  proof  of 
the  design  imputed. 

How  great,  then,  was  the  merit  of  Captain  Reid;  how  deep  were 
our  obligations  to  him  and  his  gallant  companions  for  having  de- 
feated it. 


35.  The  claim  founded  on  principles  of  justice  and 

EQUITY. 

Independently  of  the  right  to  reimbursement  from  Portugal, 
they  have  a direct  claim  upon  the  equity  and  justice  of  their 
country. 

When  the  boats  first  approached,  symptoms  of  this  design,  in  the 
judgment  of  Captain  Reid,  were  manifest.  If  Captain  Reid  had 
preserved  a pusillanimous  or  selfishly  pacific  demeanor,  submitted 
to  capture  and  allowed  his  vessel  to  become  a weapon  of  offense 


‘ 2 Statutes  at  Large,  p.  799,  § 2. 


236 


ARGUMEOT  OF  CHARLES  O’CONOR  IN  THE 


against  his  country,  the  validity  of  his  claim  against  Portugal  never 
could  have  been  effectually  questioned.  But  he  acted  on  appear- 
ances, defeated  the  design,  crippled  a whole  British  fleet,  and  con- 
ducted his  operations  in  a manner  at  once  so  judicious  and  so 
gallant  that,  whilst  considering  the  forces  employed,  they  excel  in 
martial  glory  and  fearful  consequences  to  the  enemy,  any  event  of 
the  whole  war;  every  spectator,  including  even  the  Portuguese 
allies  of  our  enemy — many  of  whom  were  injured  in  person  and 
property  during  the  conflict — justified  them  as  acts  of  imperiously 
necessary  self-defense,  warranted  by  the  great  principles  of  natural 
and  international  law,  notwithstanding  that  they  were  conducted 
within  a neutral  territory.  His  motive  could  only  have  been  to 
defeat  this  pernicious  design,  his  acts  could  not  have  been  dictated 
by  rashness  and  temerity,  or  by  any  selfish  purpose.  All  the  cir- 
cumstances repel  the  imputation  of  rashness;  selfishness  would 
have  counselled  submission  to  the  enemy.  He  acted  on  a belief 
which  we  can  now  see  was  amply  justified;  he  defeated  the  hostile 
intent:  no  mortal  can  set  limits  to  the  benefits  which  may  prob- 
ably have  resulted  to  these  United  States  from  that  defeat. 

Yet  the  very  nature  of  the  case  rendered  proof  that  that  intent 
actually  existed  extremely  difficult.  Counter-evidence  must  of 
course  be  very  accessible  to  the  unprincipled  assailant.  The  in- 
tent itself  was  fraudulent  and  dishonorable.  Those  engaged  in  it 
could  not  be  very  conscientious.  Falsehood,  deception  and  pre- 
varication are  the  invariable  allies  of  fraud.  In  submitting  himself 
to  the  government  of  his  well-founded  opinion  on  this  point.  Cap- 
tain Reid  performed  an  act  of  disinterested  devotion  to  the  defense 
of  his  country.  It  was  a departure  from  what  the  solicitor  now 
calls  “ the  private  business  speculation  in  which  he  was  engaged.” 
It  was  a voluntary  act  of  national  defense.  By  entering  upon  it, 
he  threw  away  his  certain  claim  of  reimbursement  from  the  Portu- 
guese government,  for  it  exposed  him  to  that  very  judicial  condem- 
nation by  which  the  claim  has  been  sacrificed.  Upon  any  proofs 
which  could  ever  be  produced  it  might  be  to  a partial  arbitrator, 
nay,  to  any  tribunal,  quite  “ uncertain  ” that  the  hostile  and  aggres- 
sive intent  which  he  anticipated  and  repelled,  had  any  existence 
except  in  his  own  imagination. 

In  thus  judging  and  acting.  Captain  Reid  performed  a great 
public  benefit.  He  carried  on  war  against  the  enemy  at  his  own 
expense;  and  it  was  only  necessary  to  satisfy  the  constituted  au- 
thorities of  his  country  that  the  act  was  a proper  one  to  be  ratified 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  23  T 


and  adopted,  in  order  to  give  him  a perfect  claim  in  equity  for  re- 
imbursement of  the  cost  from  the  public  treasury. 

A government  at  war  always  contemplates  carrying  on  hostili- 
ties at  the  public  cost  by  the  employment  of  force  against  the 
enemy  at  such  points  as  may  seem  most  likely  to  prove  effectual. 
And,  although  it  is  true  that  no  citizen  is  authorized  to  assume 
the  direction  of  war  measures,  yet  whenever  a private  individual, 
with  no  motive  but  the  public  good,  voluntarily  avails  himself  of 
a favorable  opportunity,  and  bears  the  brunt  of  a contest  which 
government  would  gladly  have  assumed,  could  it  have  foreseen  the 
occasion,  we  conceive  that  there  arises  in  his  favor  an  equitable 
claim  to  reimbursement. 

The  principles  of  enlarged  equity  and  good  conscience  illus- 
trated by  the  voluntary  service  in  rescuing  the  stack  of  wheat 
from  impending  peril  mentioned  in  20th  Johnson’s  Reports,  apply 
to  such  cases,  and  require  the  government  to  indemnify  the  patri- 
otic actors.’ 

36.  Private  property  cannot  be  taken  for  public  use 

WITHOUT  JUST  COMPENSATION. 

There  is  still  another  distinct  head  under  which  our  claim 
should  be  allowed. 

It  is  asserted  by  the  learned  solicitor,  and  cannot  be  denied, 
that  the  government  has  entire  and  absolute  control  over  such 
claims  as  that  which  existed  in  this  case  against  Portugal,  and  is 
alone  competent  to  prosecute  them.  Of  course,  we  admit  this 
proposition.  But  whilst  we  concede  the  power,  we  deny  that  the 
government  has  the  right  deliberately  and  intentionally  to  work  an 
inevitable  shipwreck,  or  an  express  extinction  of  the  private  cit- 
izens’ claim,  for  its  own  ease  in  the  administration  of  public  af- 
fairs, to  secure  the  favor  or  appease  the  resentment  of  a foreign 
power,  or  to  attain  any  object  or  purpose  beneficial  only  to  the 
public  at  large,  except  upon  full  compensation  to  the  person  whose 
right  is  thus  devoted  to  the  use  of  the  nation.  This  denial  is  sus- 
tained by  the  eternal  principles  of  justice.  And  these  principles, 
so  far  as  they  touch  this  question,  do  not  rest  merely  upon  the  au- 
thority of  reason  or  even  of  precedent.  They  are  consecrated  as 

* The  point  of  law  here  contended  for  was  affirmed  by  the  Commissioners  of 
Claims  under  the  late  convention  with  Great  Britain,  in  re  The  Hudson’s  Bay 
Company;  President’s  Message  of  Aug.  ii,  1856,  p.  165.  See  also  opinion  of 
Denio,  Ch.  J.,  3 Kernan’s  N.  Y.  Reports,  p.  149. 


238 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


law  by  the  fifth  amendment  to  the  Constitution.  It  provides  that 
“ private  property  shall  not  be  taken  for  public  use  without  just 
compensation.”  No  one  will  pretend  that  a right  to  reimbursement 
for  an  injury  is  not  property,  or  that  the  extinguishment  of  all  rem- 
edy for  the  enforcement  of  such  a right,  is  not  taking  away  the 
right  from  him  who  possessed  it. 

This  fundamental  rule  has  been  violated  by  the  government  of 
the  United  States,  in  respect  to  the  claim  now  before  your  honors; 
and  we  insist  that,  whenever  the  heel  of  power  tramples  in  this 
way  upon  the  interests  of  a private  citizen,  a reference  of  his  claim 
to  this  court  vests  it  with  the  means,  and  charges  upon  it  the  duty 
of  vindicating  the  right  and  exacting  justice  from  the  conscience  of 
the  republic. 

37.  General  observations  as  to  the  duty  of  the 

GOVERNMENT. 

Some  further  general  observations  relative  to  the  powers  and 
duty  of  government  in  prosecuting  against  foreign  powers  claims 
for  redress  of  grievances  suffered  by  its  citizens  may  here  be  proper. 

Though  its  action  is  representative,  and  bears  a certain  analogy 
to  that  of  an  agent,  yet,  unlike  any  other  agency,  its  power  over  the 
subject  is  supreme.  Whatever  the  government  could  do  in  its 
legislative  capacity,  it  could  properly  have  done  in  reference  to  this 
claim.  Undoubtedly,  in  pursuing  demands  against  foreign  States, 
the  government  must  be  the  sole  judge  of  the  measures  to  be 
adopted.  It  is  the  judge  whether  war  shall  be  made,  and  how  long 
the  negotiations  shall  be  permitted  to  progress  before  resort  shall 
be  had  to  extreme  measures.  The  interests  of  particular  individu- 
als are  not  to  be  preferred  to  the  interests  of  the  whole;  nor  are 
the  horrors  of  war  to  be  rashly  invoked.  It  is  also  the  sole  and 
the  competent  judge  whether  the  claim  actually  exists.  It  has  the 
right  to  take  adequate  measures  for  investigating  the  facts,  and 
ascertaining  not  only  the  existence  of  the  claim,  but  whether  it  is 
of  such  a nature  as  to  be  properly  enforceable  by  governmental 
agency.  This  may  be  done  in  any  tribunal,  or  by  any  officer  or 
instrumentality  the  government  may  think  fit  to  select.  This  is 
manifestly  so,  because  in  the  nature  of  things  the  government  can- 
not otherwise  act  intelligently.  As  a consequence,  we  must  con- 
cede that  when  the  official  inquiry  thus  instituted  results  adversely 
to  the  claim,  the  suitor  is  obliged  to  submit.  Even  though  his 
claim  be  just,  he  must  relinquish  its  prosecution.  In  such  a case 


CASE  OF  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  239 


he  is  in  no  worse  plight  than  the  owner  of  any  other  righteous  de- 
mand, who,  from  want  of  evidence  or  other  accident,  has  failed  to 
persuade  a court  and  jury  of  its  justice  or  legality. 

Even  when  a claim  has  been  found  upon  due  examination  to  be 
just,  we  concede  that  the  suitor  must  submit  to  such  delay  in  the 
prosecution  of  it  as  the  exigencies  of  public  affairs  may  occasion; 
nor  is  there  any  greater  right  to  complain  of  delays  than  belong  to 
suitors  in  our  ordinary  courts  of  justice.  Much  time  is  often  re- 
quired to  carry  their  cases  through,  and  consequently  mere  delay 
cannot  be  considered  a neglect  of  duty. 

Questions  of  more  difficulty  may  arise  in  respect  to  the  powers 
of  government  to  compromise  a claim  which  it  has  pronounced  to 
be  just.  For  instance,  whether  in  consideration  of  some  special 
circumstances  government  would  be  authorized,  in  a class  of  cases, 
to  accept  as  in  full  a portion  of  the  sum  due  ? Perhaps  there  are 
grounds  which  might  justify  the  exercise  of  such  a discretion.  We 
do  not  mean  to  deny  or  dispute  it,  because  the  inquiry  is  altogether 
irrelevant  to  this  case. 

It  has  been  contended  that,  when  prosecuting  claims  against  a 
foreign  State,  government  has  a right  to  discriminate  between 
those  equally  meritorious,  to  prosecute  some  and  abandon  others. 
Perhaps  this  may  be  so.  But  there  is  an  universally  received  no- 
tion of  justice  which  forbids  such  a course.  The  learned  solicitor 
may,  if  he  pleases,  pronounce  it  a vulgar  prejudice;  certainly  its 
condemnation  is  usually  expressed  in  a somewhat  vulgar  form 
of  speech.  It  is  called  “ making  fish  of  one,  and  flesh  of  another.’* 
Even  in  matters  of  gift  or  courtesy  it  is  disapproved.  Equality 
is  approved  by  the  universal  sense  of  mankind — in  the  distribution 
of  alms,  the  bestowal  of  complimentary  gifts,  and  the  tender  of 
courtesy,  as  well  as  in  the  administration  of  justice.  When  a 
parent’s  testament  discriminates  between  his  children,  it  often  leaves 
a “ plague-spot  ” upon  the  testator’s  memory,  and  lights  the  bale- 
ful fires  of  hatred  amongst  his  posterity.  How  far  a simple  dis- 
crimination between  claims  of  precisely  equal  merit  might  be  com- 
petent, need  not  be  determined.  No  such  case  is  before  the  court. 
This  claim  was  never  thus  simply  discriminated  against  and  aban- 
doned. We  will  consider  hereafter  what  may  be  the  just  result 
of  that  which  did  take  place,  that  is  to  say,  an  abandonment  of  it 
by  the  government  for  a valuable  consideration  received  by  the 
nublic. 

The  right  of  the  government  as  prosecutor  of  claims  for  the 


540 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


spoliation  of  its  citizens,  to  discriminate,  to  a certain  extent,  be- 
tween classes  of  claims,  might  safely  be  conceded,  and  perhaps 
could  not  be  denied.  For  instance,  in  negotiating  with  a foreign 
State,  all  claims  existing  prior  to  a certain  date,  or  to  some  public 
event,  might  perhaps  be  deferred;  all  claims  constituting  a class, 
and,  as  such,  falling  within  certain  principles  apparently  detracting 
from  their  merit,  might  perhaps  be  relinquished.  This  line  of 
action  would  not  always  involve  a manifest  violation  of  the  rule 
that  government  should  afford  equal  protection,  and  extend  equal 
benefits  to  all  beneath  its  sway.  In  imposing  taxes  and  other 
burdens,  the  legislative  power  often  selects  certain  classes.  Partic- 
ular trades  or  occupations  hitherto  lawful  may,  by  an  exercise  of 
legislative  discretion,  be  adjudged  to  be  prejudicial  to  the  public 
interest,  and  henceforth  prohibited  or  restrained  within  new  and 
more  confined  limits.  The  legislative  power  decrees  that  only 
males  between  certain  ages  shall  be  sent  to  bare  their  bosoms  to  the 
enemy  and  ward  off  his  assaults,  thus  exempting  all  others  from 
military  duty.  Inequalities  in  administration  like  these  which  go 
upon  some  reason,  wisely  or  not,  assumed  to  be  just,  have  not  the 
impress  of  unfairness  and  favoritism.  We  need  not  in  this  case 
deny  their  lawfulness.  But  whilst  we  concede  to  the  government, 
in  its  legislative  action  and  in  its  executive  administration,  this 
right  of  discriminating  between  large  classes  of  cases  or  persons, 
in  the  imposition  of  burdens  and  the  granting  or  withholding  of 
privileges,  we  deny  its  right  to  single  out  for  sacrifice  a single  indi- 
vidual or  one  particular  claim.  Such  an  act  is  repugnant  to  the 
general  sense  of  mankind;  and,  if  it  be  designed  for  the  public  in- 
terest, is  forbidden  by  the  Constitution,  unless  upon  full  compensa- 
tion made  from  the  public  treasury. 

38.  The  claim  against  Portugal  sacrificed  for  public 

ENDS. 

In  the  first  place,  the  government  investigated  the  merits  of  this 
claim,  and  determined  that  it  was  valid.  It  was  in  the  power  of  the 
government,  on  obtaining  new  lights,  to  have  revoked  this  decision; 
but  it  never  has  done  so.  It  never  can  do  so ; the  facts  forbid. 
As  parens  patrice^  it  assumed  the  duty  of  enforcing  against  Portugal 
this  claim,  together  with  several  others  of  equal,  but  not  of  greater 
validity.  Negotiations  were  commenced  accordingly,  and  after 
many  years  they  reached  a conclusion.  The  ultimatum  of  Portugal 
was,  that,  although  she  denied  the  justice  of  all  the  claims,  yet, 


CASE  OF  THE  BRIG-OF-WAR  GE^^ERAL  ARMSTRONG.  241 


for  the  sake  of  peace,  she  would  recede  from  her  opposition  to  all 
the  others,  and  would  pay  them  in  full,  provided  our  government 
would  refer  this  one  to  arbitration.  Whether  she  could  be  driven 
from  this  position  by  anything  less  than  actual  compulsion,  was  to 
some  extent  tested  by  General  Taylor’s  administration.  The  United 
States  could  not  separate  the  several  parts  of  the  offer;  they  were 
obliged  to  accept  it  or  reject  it  in  toto}  Mr.  Clay,  our  minister,  by 
authority  of  his  government,  rejected  it,  demanded  his  passports, 
and  sailed  from  the  Tagus. 

At  this  critical  moment  in  the  history  of  our  claim,  the  heroic 
head  of  our  government  was  summoned  from  mortal  to  immortal 
life.  His  more  cool  successor,  armed  with  a higher  degree  of  pru- 
dence, shrunk  from  the  responsibilities  of  a war  with  that  nation 
which  had  been  pleading  her  own  weakness  and  incapacity  for  half 
a century.  He  at  once  relinquished  the  high  ground  taken  by  his 
predecessor,  and  accepted  the  offer  of  Portugal. 

The  treaty  thereupon  made,  singled  out  the  case  of  the  General 
Armstrong  for  umpirage,  and  the  other  claims  were  paid  accord- 
ingly. 

We  do  not  deny  that  our  government  might  fairly  have  sub- 
mitted any  mere  question  of  law  involved  in  the  case  even  to  a 
third  power,  since,  on  that  part  of  the  case,  error  seems  to  have 
been  impossible.  Perhaps  we  could  not  complain  of  an  investiga- 
tion of  the  facts  by  a jury  or  by  any  responsible  and  impartial  in- 
dividual. But  inasmuch  as,  from  the  outset,  it  was  plainly  mani- 
fest to  the  commonest  understanding,  that  a reference  of  the  claim, 
as  a question  of  fact,  or  as  a mixed  question  of  law  and  fact,  to  any 
potentate  of  Europe,  necessarily  involved  its  rejection,  we  insist 
that  this  treaty,  taken  in  connection  with  the  subsequent  unwar- 
rantable acquiescence  of  our  government  in  Louis  Napoleon’s 
award,  was  a sacrifice  of  the  claim  for  the  sake  of  accomplishing 
ends  deemed  to  be  important  to  the  public,  that  is  to  say,  the  re- 
covery of  other  claims  and  the  restoration  of  amity  with  Portugal. 
If  we  are  mistaken  in  the  views  which  have  been  expressed  to  the 
contrary,  and  the  treaty  did,  indeed,  contemplate  a submission  of 
the  facts,  our  point  is  only  made  the  more  brief  and  direct.  Then 
the  treaty  itself  was  a substantial  surrender  of  our  claim.  All  that 
followed  was  ‘‘leather  or  prunella,”  the  mere  ceremonial  of  the 
release.  Louis  Napoleon  was  the  scrivener,  chosen  by  the  high 


16 


^ 2 Sandford’s  Chancery  Reports,  p.  244. 


212 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


contracting  parties,  to  select  the  phrase  and  apply  the  forms  re- 
quired for  a solemn  authentication  of  their  preconceived  design. 
We  do  not  mean  that,  in  a common  and  vulgar  sense,  our  govern- 
ment designed  this  relinquishment;  but  it  is  sound  law  and  con- 
formable to  reason,  that  parties  are  always  held  to  intend  the  nec- 
essary result  of  their  acts.  Portugal  saw  that  arbitration  and 
release  were  practical  synonyms;  the  claimants  saw  it  and  remon- 
strated against  the  measure;  our  government  ought  to  have  seen  it, 
was  bound  to  have  seen  it,  and  must,  therefore,  be  adjudged  to 
have  seen  it. 

Thus  we  establish  our  point  that  this  claim  being  private  prop- 
erty, was  devoted  to  destruction  for  purposes  of  State,  which  fact, 
by  the  Constitution  and  by  the  elementary  principles  of  general 
justice,  entitles  the  owners  to  compensation  from  the  public 
treasury. 

39.  Observations  as  to  the  antiquity  of  the  claim  and 

ITS  ALLEGED  REJECTION. 

The  great  antiquity  of  this  claim  has  been  urged  against  it. 
That  is  certainly  not  the  fault  of  the  claimants.  They  presented 
it  in  their  protest  on  the  very  day  the  General  Armstrong  was  de- 
stroyed; they  have  patiently  but  respectfully  pressed  it  by  every 
means  in  their  power  from  that  day  to  the  present.  If  it  has  been 
neglected  by  the  government,  which  alone  had  the  means  of  en- 
forcing it,  that  fact,  so  far  from  being  an  objection  to  the  claim  as 
now  presented  to  this  court,  is  the  very  basis  on  which  it  rests. 

Here  Mr.  O’Conor  showed  that  the  claim  never  had  been  rejected,  as  was 
claimed  by  the  government.  He  referred  to  the  report  of  the  Senate  Committee 
in  1817,  when  it  was  declared  “that  indemnity  from  Portugal  ought  to  be  in- 
sisted on  as  an  affair  of  Slate.”  Next  he  showed  that  it  was  again  referred  to 
the  State  Department  in  1846.  He  then  referred  to  the  action  of  Congress  after 
the  decision  of  Louis  Napoleon,  when  a bill  providing  that  the  matter  be  re- 
ferred to  the  court,  having  passed  the  house,  was  tabled  in  the  Senate  by  one 
vote.  He  then  continued  : 

The  claim  was  once  allowed  by  a strong  vote,  and  the  utmost 
that  can  be  alleged  against  it  is,  that  it  was  once  indefinitely  post- 
poned by  a majority  consisting  of  one  single  vote.  It  is  true,  the 
claimants  have  been  delayed  and  postponed;  they  have  been  turned 
over  to  Portugal  for  redress,  and  sent  muzzled  and  fettered  to  the 
footstool  of  Louis  Napoleon  for  justice;  but  their  merit  has  never 
been  denied.  Every  congressional  report  upon  the  subject,  and 


t?ASE  OP  THE  BRIG-OF-WAR  GENERAL  ARMSTRONG.  243 


they  amount  to  four  in  number,  covering  a period  of  nearly  forty 
years,  is  in  their  favor. 

40.  Personal  motives  of  Captain  Reid. — A comparison  with 

Washington. 

Captain  Reid  has  been  reproached  with  sordid  motives  in  min- 
gling with  the  glorious  history  of  his  achievement  the  acceptance  of 
a pecuniary  recompense.  Is  it  dishonorable  in  the  war-worn 
veteran  to  accept  from  the  overflowing  treasury  of  his  happy  and 
prosperous  country  the  means  of  subsistence  in  his  old  age,  and  of 
decent  sepulture  when  his  hour  of  parting  shall  arrive  ? Surely 
not.  The  learned  solicitor  accompanied  his  lecture  on  this  head 
with  a reference  to  the  example  of  him  whose  deeds  and  memory 
are  deemed  the  best  illustrations  of  all  that  is  heroic  in  patriotism, 
and  exalted  in  honor  and  moral  rectitude.  Though  Captain  Reid 
presumes  not  to  challenge  a comparison,  we  must  say  that  this  allusion 
of  the  learned  solicitor  was  most  unfortunate.  Though  there  be  no 
comparison,  neither  is  there  in  this  particular  any  contrast.  Though 
Washington  never  descended  to  the  grade  of  a hireling,  and  per- 
sisted to  the  last  in  refusing  compensation,  though  he  did  not  even 
accept  reimbursement  of  his  personal  expenses  from  our  impover- 
ished treasury  during  the  conflict;  yet  it  is  one  of  the  recorded 
proofs  of  his  practical  wisdom,  of  his  freedom  from  mere  senti- 
mentality, and  of  his  precision  and  exactitude  in  the  details  of 
duty,  that,  when  his  country  had  achieved  her  independence  and 
was  able  and  willing  to  do  justice,  he  rendered,  in  his  own  hand- 
writing, a minute  statement  of  his  expenses  in  the  public  service, 
and  received  from  Congress  a full  pecuniary  indemnity.  This 
parallel,  which,  but  for  the  learned  solicitor’s  introduction  of  it,  we 
would  not  have  ventured  to  exhibit,  refutes  another  of  his  argu- 
ments. He  says  that  all  claims  allowed  by  government  ought  to 
be  founded  in  some  prescribed  rule  of  law.  Washington  declined 
that  very  payment  for  his  time  and  services  which  the  law  allowed, 
and  accepted  the  indemnity  which  no  known  law  directly  sanc- 
tioned, but  which,  being  due  on  principles  of  natural  justice,  was 
conceded  by  the  enlightened  equity  of  Congress  and  the  gratitude 
of  his  country. 

Captain  Reid  asks  no  gratuity;  he  asks  neither  pay  nor  reward 
for  his  personal  toil,  sufferings  or  achievements.  Simple  indemnity 
for  the  actual  pecuniary  losses  of  himself  and  his  brave  companions 
is  all  that  he  seeks  for  himself  or  them. 


24:4: 


ARGUMENT  OF  CHARLES  O’CONOR  IN  THE 


Here  and  elsewhere,  it  has  been  again  and  again  urged  that  the 
allowance  of  this  claim  would  be  bad  policy  and  “ a dangerous 
precedent.” 

Paying  a just  indemnity  for  such  losses,  it  is  said,  would  lead  to 
numerous  claims  of  the  kind.  When  claims  are  not  founded  on 
meritorious  services,  they  can  be  rejected.  But  we  cannot  see  that 
any  mischief  will  result  to  our  country  or  its  interests  from  allowing 
indemnity  for  the  cost  of  achievements  in  war,  so  signal  in  them- 
selves and  so  beneficial  in  their  consequences  as  that  now  under 
review.  May  such  “precedents”  never  be  wanting.  They  must 
ever  redound  to  the  profit  and  honor  of  our  country,  and  can  never 
prove  dangerous,  except  to  our  enemies. 

It  is  said,  if  we  repudiate  the  award  of  Louis  Napoleon,  it  will 
disturb  our  amicable  relations  with  France  and  prevent  European 
potentates  from  ever  acting  as  umpires  for  us.  France  cannot 
easily  make  a national  quarrel  out  of  our  awarding  compensation  to 
our  gallant  tars  for  doing  their  duty.  And  if  the  effect  of  your 
decision  should  be  to  deter,  for  all  future  time,  American  statesmen 
from  submitting  to  the  arbitrary  determination  of  an  European 
potentate,  without  evidence  and  without  argument,  questions  of 
fact  involving  our  national  honor,  so  much  the  better.  If  it  shall 
also  deter  European  rulers  from  ever  again  assuming  the  decision 
of  such  questions,  it  will  render  them  an  important  service.  He 
who  by  position  and  circumstances  is  disqualified  from  exercising 
an  impartial  judgment,  sins  against  his  best  interests  and  his  own 
honor  in  assuming  the  office  of  judge. 

The  award  is  founded  in  error.  It  seeks  to  falsify  American 
history,  to  fix  a stigma  upon  our  national  character,  and,  at  our 
expense,  to  rescue  our  enemy  from  merited  opprobrium.  Unless  by 
some  competent  authority  repudiated  upon  our  part,  we  must  be 
deemed,  through  all  future  time,  as  having  subscribed  to  its  truth 
and  our  own  dishonor.  Instead  of  allowing  it  to  seem  thus  acqui- 
esced in,  this  court,  as  it  may  do  consistently  with  truth  and  justice, 
ought  to  stamp  upon  the  page  of  history  its  indignant  reprobation 
of  both  the  reference  and  the  award. 

Let  it  not  be  said  that  posterity  will  prefer  to  the  judgment  of 
this  court  the  award  of  the  impartial  referee.  In  what  degree  he 
was  impartial  may  be  gathered  from  the  facts.  He  assumed  powers 
not  granted.  He  gave  credit  to  the  denial  of  a witness  whose  posi- 
tive assertion  he  discredited  and  solemnly  found  to  be  untrue.  At 
the  very  time  of  forming  his  award  he  was  secretly  progressing  in 


CASE  OF  THE  BEIG-0F-\7AR  GENERAL  ARMSTRONG.  245 


negotiations  for  an  alliance  with  Great  Britain,  the  nation  chiefly 
interested  against  us  in  the  controversy.  The  importance  of  that 
alliance,  and  the  necessity  of  securing  it,  may  be  judged  by  the 
stupendous  objects  it  had  in  view,  and  is  now  struggling  to  accom- 
plish.* Neither  will  it  be  overlooked  that  he  was  chosen  to  arbitrate 
as  president  of  the  republic  of  France,  and  that,  when  preparing 
the  award,  he  was  actively  engaged  in  undermining  the  foundations 
of  that  government,  which,  as  chief  magistrate,  he  was  pledged  to 
maintain.  Though  the  reference  was  to  a president,  the  award 
came  from  a king.  With  the  hand  which  signed  it,  he  had  just 
stricken  down  the  liberties  of  his  country;  that  hand  was  yet  reek- 
ing with  the  life-blood  of  a republican  constitution. 

It  may  not  seem  strange  if  to  gratify  a monarchical  ally,  he  sac- 
rificed the  rights  of  a republic. 

You  have  been  asked  to  avoid  scrutinizing  too  nicely  the  jus- 
tice of  this  award,  from  considerations  of  deference  to  the  chief  of 
a sovereign  State  now  in  amity  with  us.  We  ask  you  to  scrutinize 
it  closely,To  judge  it  fearlessly,  and,  as  becomes  an  American  tri- 
bunal, to  discard  considerations  of  policy  when  justice  and  national 
renown  are  involved.  If  the  arbiter  were  all  that  his  most  ob- 
sequious admirers  would  venture  to  assert,  his  merits  have  been 
sufficiently  acknowledged  and  amply  rewarded.  The  liberties  of 
one  republic  have  been  sacrificed  to  his  ambition,  let  us  not  im- 
molate the  fame  of  another  upon  the  same  unholy  altar. 

’ At  the  time  when  this  speech  was  delivered,  the  seige  of  Sebastopol,  by  the 
combined  forces  of  France  and  Great  Britain,  was  in  active  progress. — Editor. 


THE  GROWTH  OF  PRINCIPLES. 

HON.  JOSEPH  NEILSON. 

Chief  Justice  of  the  City  Court  of  Brooklyn. 

At  the  sea  shore  you  pick  up  a pebble,  fashioned  after  a law  of  nature, 
in  the  exact  form  that  best  resists  pressure,  and  worn  as  smooth  as  glass. 
It  is  so  perfect  that  you  take  it  as  a keepsake.  But  could  you  know  its 
history  from  the  time  when  a rough  fragment  of  rock  fell  from  the  over- 
hanging cliff  into  the  sea,  to  be  taken  possession  of  by  the  under  currents, 
and  dragged  from  one  ocean  to  another,  perhaps  around  the  world,  for  a 
hundred  years,  until  in  reduced  and  perfect  form  it  was  cast  upon  the  beach 
as  you  find  it,  you  would  have  a fit  illustration  of  what  many  principles, 
now  in  familiar  use,  have  endured,  thus  tried,  tortured  and  fashioned  dur- 
ing the  ages.  We  stand  by  the  river  and  admire  the  great  body  of  water 
flowing  so  sweetly  on ; could  you  trace  it  back  to  its  source,  you  might  find 
a mere  rivulet,  but  meandering  on,  joined  by  other  streams  and  by  secret 
springs,  and  fed  by  the  rains  and  dews  of  heaven,  it  gathers  volume  and 
force,  makes  its  way  through  the  gorges  of  the  mountains,  plows,  widens 
and  deepens  its  channel  through  the  provinces,  and  attains  its  present 
majesty.  Thus  it  is  that  our  truest  systems  of  science  had  small  begin- 
nings, gradual  and  countless  contributions,  and  finally  took  their  place  in 
use,  as  each  of  you,  from  helpless  childhood  and  feeble  boyhood,  have 
grown  to  your  present  strength  and  maturity.  No  such  system  could  be 
born  in  a day.  It  was  not  as  when  nature  in  fitful  pulsations  of  her  strength 
suddenly  lifted  the  land  into  mountain  ranges,  but  rather,  as  with  small 
accretions,  gathered  in  during  countless  years,  she  builds  her  islands  in 
the  seas. 

It  took  a long  time  to  learn  the  true  nature  and  office  of  governments ; 
to  discover  and  secure  the  principles  commonly  indicated  by  such  terms  as 
“ Magna  Charta,”  the  “ Bill  of  Rights,”  “ Habeas  Corpus,”  and  the  “ Right 
of  trial  by  jury;”  to  found  the  family  home,  with  its  laws  of  social  order, 
regulating  the  rights  and  duties  of  each  member  of  it,  so  that  the  music 
at  the  domestic  hearth  might  flow  on  without  discord;  the  household 
gods  so  securely  planted  that  “ Though  the  wind  and  the  rain  might 
enter,  the  king  could  not”;  to  educate  noise  into  music,  and  music 
into  melody;  to  infuse  into  the  social  code  and  into  the  law  a spirit  of 
Christian  charity,  something  of  the  benign  temper  of  the  New  Testament, 
so  that  no  man  could  be  persecuted  for  conscience  sake,  so  that  there  should 
be  an  end  of  human  sacrifice  for  mere  faith  or  opinion ; the  smouldering 
fires  at  the  foot  of  the  stake  put  out,  now,  thank  God,  as  effectually  as  if 
all  the  waters  that  this  night  flood  the  rivers  had  been  poured  in  upon 
them.  It  took  a long  time  to  learn  that  war  was  a foolish  and  cruel 
method  of  settling  international  differences  as  compared  with  arbitration; 
to  learn  that  piracy  was  less  profitable  than  a liberal  commerce;  that  un- 
paid labor  was  not  as  good  as  well- requited  toil ; that  a splenetic  old  woman, 
falling  into  trances  and  shrieking  prophecies,  was  a fit  subject  for  the  asylum 
rather  than  to  be  burned  as  a witch. 

It  took  a long,  long  time  after  the  art  of  printing  had  been  perfected 
before  we  learned  the  priceless  value,  the  sovereign  dignity  and  usefulness 
of  a free  press. 

But  these  lessons  have  been  taught  and  learned  ; taught  for  the  most 
part  bv  the  pronhets  of  our  race,  men  living  in  advance  of  their  age,  and 
understood  only  by  the  succeeding  generations.  But  you  have  the  in- 
heritance— [From  an  address  delivered  at  Saratoga,  August  i,  1875.] 


[246] 


SPEECH  OF  RUFUS  CHOATE, 


On  behalf  of  Helen  Maria  Dalton,  in  the  Dalton 
Divorce  Case. 

BEFORE  Mr.  JUSTICE  MERRICK,  AND  A JURY,  IN  THE  SU- 
PREME JUDICIAL  COURT,  HELD  IN  THE  CITY  OF 
BOSTON,  MAY,  1856. 


Analysis  of  Mr.  Choate’s  Speech. 


1.  a verdict  for  defend mt  equally  desira- 

ble by  both  pa.  ties; 

2.  The  narration. 

3.  Helen  Dalton’s  acquaintance  with  Sum- 

ner. 

4.  Insincerity  of  counsel  as  to  offering 

Sumner’s  dying  declarations. 

5.  No  evidence  of  improper  intimacy. 

6.  Mrs.  Dalton’s  love  for  her  husband. 

7.  Sumner’s  desires  indignantly  repelled. 

8.  Defendant’s  full  and  complete  revela- 

tions. 

9.  Dalton,  with  knowledge  of  all  the  facts, 

believed  his  wife  innocent. 

10.  Why  plaintiff  did  not  meet  his  wife  pend- 

ing his  trial  for  homicide. 

11.  Influences  which  prejudiced  the  hus- 

band. 

12.  Defendant’s  alleged  confession  ex- 

plained. 

13.  Meeting  of  the  husband  and  wife,  after 

their  separation. 

14.  Object  and  purpose  of  the  story  of  the 

wife’s  crime  exposed. 

15.  Necessity  and  propriety  of  public  trials. 

16.  The  presumption  of  innocence. 

17.  N ) proof  of  defendant’s  guilt. 

18.  No  proof  of  proximate  acts  of  adultery. 

19.  Rules  as  to  weighing  circumstantial  evi- 

dence. 

20.  The  circumstance  relied  on  by  plaintiff. 

21.  No  motive  to  induce  defendant  to  de- 

stroy her  offspring. 

22.  Testimony  reviewed  to  show  absence  of 

motive. 

23.  Defendant’s  proof  showing  falsity  of  the 

charge  narrated. 

24.  Mrs.  Gove  — her  character  and  testi- 

mony. 

25.  Mr.  Gove— his  character  and  testimony. 


26.  Dr.  Calkins. — Inference  from  his  refusals 

to  answer. 

27.  Defendant’s  evidence  strongly  corrobo- 

rated. 

28.  The  testimony  of  the  parties  contrasted. 

29.  Evidence  of  flirtation  no  proof  of  crime. 

30.  Observations  on  evils  of  flirtation. 

31.  Ap  lication  of  the  law  to  t’;e  case  at  bar. 

32.  The  evidence  of  flirtation  entirely  worth- 

less. 

33.  Evidence  of  flirtation  consistent  with  a 

theory  of  innocence. 

34.  Crime  cannot  be  inferred  from  proof  of 

unlawful  love  and  opportunity. 

35.  Circumstances  showing  that  defendant 

never  declared  she  loved  Sumner. 

36.  Dido’s  entreaty  with  oEneas. 

37.  Defendant’s  love  for  her  husband. 

38.  A conviction  asked  on  the  evidence  on 

which  plaintiff  regarded  her  innocent. 

39.  The  influences  which  changed  the  hus- 

band’s demeanor. 

40.  Evidence  of  the  alleged  confessions. — A 

confession  of  guilt  impossible  under 
the  circumstances. 

41.  Nature  and  character  of  confessions  as 

evidence. 

42.  Application  of  the  rules  of  evidence  to 

the  facts. 

43.  Arraignment  of  the  witnesses  to  the 

confession. 

44.  Credibility  of  witnesses. — Arraignment 

of  John  H.  Coburn, 

45.  The  husband’s  conduct  a refutation  of 

Coburn’s  evidence. 

46.  The  mutilated  letter. 

47.  Edward  O Coburn’s  story  of  the  cake 

and  wine  an  invention. 

48.  Arraignment  of  Edward  O.  Coburn. 

49.  Arraignment  of  Mary  Hunter. 

50.  All  the  letters  taken  together  show  de* 

fendant  innocent. 

[2471 


24:8 


SPEECH  OF  RUFUS  CHOATE 


Near  the  close  of  his  life,  and  in  the  fullness  of  his  fame,  Rufus  Choate 
made  his  great  argument  in  defense  of  Helen  Maria  Dalton,  in  an  action  brought 
by  her  husband  for  a divorce.  He  was,  at  the  time,  regarded  as  the  head  of  the 
American  bar,  and  one  of  the  most  eloquent  men  living.  The  cause  furnished 
materials  upon  which  to  display  his  power  as  a lawyer  and  an  advocate. 

On  the  nth  of  June,  1855,  in  the  city  of  Boston,  Frank  Dalton  married 
Helen  Maria  Gove,  a pretty,  blushing  school-girl  of  seventeen  summers.  Dalton 
was  then  a young  man  of  twenty-two,  of  good  family  and  excellent  prospects. 
He  stood  high  in  the  estimation  of  the  mercantile  firm  with  whom  he  was  asso- 
ciated, and  earned  a handsome  yearly  income,  the  reward  of  his  talents  and  in- 
dustry. He  lived  with  his  young  wife  at  a stylish  boarding-house  in  a fashion- 
able part  of  the  city,  and  for  about  five  months  was  one  of  the  happiest  men  in 
the  world;  a kind  and  affectionate  husband,  and  loved  and  esteemed  by  all  with- 
in the  circle  of  his  acquaintance.  The  period  of  the  honeymoon,  however,  had 
scarcely  passed  when  the  clouds  began  to  lower,  his  domestic  happiness  was 
broken  and  destroyed,  and  proceedings  for  divorce  was  the  result.  It  appears 
that  his  wife,  who  was  quite  handsome,  became  familiar  with  a young  man 
named  William  Sumner,  who  succeeded  in  stealing  her  affections  to  such  an  ex- 
tent that  she  finally  accepted  presents  and  corresponded  with  him,  and  on  sev- 
eral occasions  went  out  driving  in  his  company.  When  the  husband  made  the 
discovery,  he  brought  his  wife  and  Sumner  face  to  face,  at  the  house  of  his 
brother-in-law,  Mr.  Coburn,  in  Shawmut  avenue,  to  ascertain  the  exact  truth,  for 
he  hoped  and  trusted  that  his  wife,  though  foolishly  indiscreet,  was  guilty  of  no 
crime.  He  heard  their  story,  and,  though  in  deep  distress  and  agony  of  spirit,  he 
believed  his  wife,  until  Sumner,  for  some  reason  becoming  alarmed,  threw  him- 
self at  her  feet  for  protection.  This  so  exasperated  the  husband  that  he  thrashed 
Sumner  severely,  and  would  perhaps  have  seriously  injured  him  had  he  not  suc- 
ceeded in  making  his  escape.  Sumner  left  Boston  and  went  to  his  home  in 
Milton,  where  shortly  afterwards  he  sickened  and  died.  The  newspapers  got 
hold  of  the  story,  the  affair  was  greatly  exaggerated,  created  a sensation,  and 
the  result  was  that  Dalton  and  Coburn,  for  the  latter  was  present  at  the  beating, 
were  arrested  on  the  charge  of  having  caused  his  death,  were  indicted  and 
lodged  in  jail.  It  is  a remarkable  coincidence  that  the  unfortunate  young 
husband  was  put  in  the  same  cell  previously  occupied  by  Albert  J.  Tirrell,  whose 
life  was  saved  by  Mr.  Choate  in  a defense  supposed  to  have  been  the  most  skill- 
ful and  remarkable  in  the  history  of  the  American  bar.  The  grand  jury  refused 
to  find  a bill  against  the  prisoners  for  murder,  but  they  were  indicted  for  man- 
slaughter, tried,  and  acquitted.  Upon  the  charge  of  assault,  however,  Dalton 
was  convicted  and  sentenced  to  five  months’  imprisonment.  During  his  confine- 
ment he  still  believed  his  wife  innocent  of  actual  criminality  with  Sumner. 
Then  there  came  a confession  by  the  wife;  whether  a confession  of  her  folly  or 
something  more,  is  not  exactly  clear.  Counsel  for  the  defense  argued,  that  from 
his  conduct  the  husband  did  not  consider  that  it  embraced  his  wife’s  guilt.  Then 
a sad  circumstance  occurred.  Mrs.  Dalton  became  very  ill.  The  theory  of  the 
plaintiff  was  that  she  attempted  to  prematurely  destroy  her  offspring  to  hide  the 
evidence  of  her  guilt.  Counsel  for  the  defense  insisted  that  she  had  suffered  a 
miscarriage,  and  seem  to  have  established  this  fact  upon  the  trial.  They 
claimed  that  the  husband  believed  his  wife  innocent,  and  would  have  lived  with 
her,  but  his  friends,  in  order  to  poison  his  mind  against  her  forever,  circulated 


ON  BEHALF  OF  HELEN  xMARIA  DALTON. 


249 


the  story  which  it  was  endeavored  to  establish  at  the  trial.  Whether  the  last 
great  charge  was  true  or  false,  certain  it  is  that  Frank  Dalton  came  to  believe 
his  wife  guilty.  He  was,  however,  a man  with  a kind  heart  and  generous  im- 
pulses, and  it  was  thought  by  his  father-in-law,  that  if  proper  influences  could 
be  brought  to  bear,  a reconciliation  might  be  effected.  In  response,  however, 
to  the  overtures  of  Mr.  Gove,  the  offer  of  money  and  the  proposition  to  go  to 
California,  Mr.  Dalton  wrote  : “ Were  she  innocent,  if  heaven  had  made  me 
such  another  world  of  one  entire  and  perfect  chrysolite,  I would  not  have  sold 
her  for  it ; but  as  I know  her  to  be  what  she  has  been  obliged  to  confess  to  me 
she  is,  the  world  is  not  rich  enough  to  buy  me  ! I have  loved  her,  but  no  more 
can  she  be  wife  of  mine.  I cannot  any  longer  confide  to  her  the  guardianship 
of  my  honor ; she  has  unfitted  herself  to  be  any  longer  the  keeper  of  any  man’s 
honor  and  his  peace  of  mind.  I cannot  take  her  to  be  the  mother  of  my  chil- 
dren; if  the  law  does  not  compel  me  to  do  it,  I cannot  do  it.”  It  was  then  that 
Dalton  showed  his  splendid  manhood,  for  he  paid  back  to  Mr.  Gove  the  $3,000 
which  he  had  advanced  as  a marriage  portion,  and  having  thus  swept  away  every 
seeming  incumbrance,  he  came  into  court  and  asked  that  the  marriage  contract  he 
had  made  might  be  dissolved,  because  his  wife  had  failed  faithfully  to  keep  and 
perform  it. 

Notwithstanding  the  strong  circumstances  pointing  to  the  defendant’s  crim- 
inality, Mr.  Choate  unquestionably  showed  that,  putting  plaintiff’s  proof  in  the 
strongest  possible  light,  the  entire  evidence  was  at  least  consistent  with  a theory 
of  defendant’s  innocence,  even  if  also  consistent  with  a theory  of  guilt,  and  he 
claimed  that,  under  the  circumstances  as  matter  of  law,  the  plaintiff  was  not  en- 
titled to  a verdict.  (Bishop  on  Mar.  & Div.  § 423;  Ferguson  v.  Ferguson,  3 Sand- 
ford,  307.)  Despite  the  good  name  and  character  of  the  plaintiff,  and  the  ex- 
ceedingly able  and  brilliant  argument  of  Richard  H.  Dana,  Jr.,  in  his  behalf, 
Mr.  Choate  split  the  jury  and  won  the  case. 

The  crowning  point  of  this  wonderful  effort  was  the  manner  in  which  he  dis- 
posed of  the  story  that  the  defendant  had  destroyed  her  offspring.  On  that 
portion  of  the  evidence — after  he  had  finished  his  searching  analysis  of  the  testi- 
mony, pronounced  his  terrible  and  scathing  arraignment  of  the  witnesses  relied 
upon  to  establish  it,  and  made  his  conclusive  argument  to  show  that  there  was 
not  the  shadow  of  a foundation  for  a motive  for  the  crime — he  had  demolished 
the  strong  part  of  the  plaintiff’s  case,  and  made  an  impression  upon  a portion  of 
the  jury  that  could  not  be  effaced.  All  the  resources  of  his  well-stored  mind  and 
fervid  imagination  were  brought  to  bear  and  made  to  contribute  to  his  advantage 
and  success.  He  knew  how  to  touch  the  springs  of  knowledge  at  the  right  time 
and  in  the  right  way,  without  straining,  without  effort,  without  vain  display, 
without  show  of  pedantry.  His  work  was  the  work  of  a master.  The  strong 
parts  of  plaintiff’s  evidence  crumbled  away  beneath  his  searching  investigation. 
His  power  to  persuade  and  convince  was  irresistible. 

It  will  be  noticed  with  what  tenderness  and  regard  he  treated  not  only  his 
adversary,  for  whom  he  entertained  high  esteem,  but  the  plaintiff  also.  He  never 
stooped  to  employ  invective;  but  his  arraignment  of  an  untruthful  witness,  when 
opportunity  offered,  w’as  fearful  and  terrific.  Mr.  H.  F.  Durant  was  associ- 
ated with  Mr.  Choate,  and  opened  for  the  defendant.  Richard  H.  Dana,  Jr., 
conducted  the  cause  for  the  plaintiff  with  very  great  ability.  When  the  evidence 
on  both  sides  was  all  in,  Mr.  Choate  arose  and  addressed  the  jury  as  follows: 


250 


SPEECH  OF  RUFUS  CHOATE 


Mr.  Foreman  and  Gentlemen: — I congratulate  you,  on  ap- 
proaching, at  least,  the  close  of  this  case,  so  severe  and  painful  to 
all  of  us.  One  effort  more  of  your  indulgence  I have  to  ask,  and 
then  we  shall  retire  from  your  presence,  satisfied  and  grateful  that 
everything  which  candor  and  patience  and  intelligence  can  do  for 
these  afflicted  suitors  has  been  done.  It  very  rarely,  indeed,  hap- 
pens, gentlemen,  in  the  trial  of  a civil  controversy,  that  both  par- 
ties have  an  equal,  or  rather  a vast  interest  that  one  of  them — in 
this  case  the  defendant — should  be  clearly  proved  to  be  entitled 
to  your  verdict.  Unusual  as  it  is,  in  the  view  I take  of  this  case, 
^uch  an  one  is  now  on  trial. 

I.  A VERDICT  FOR  DEFENDANT  EQUALLY  DESIRABLE  BY  BOTH 

PARTIES. 

To  both  of  these  parties,  it  is  of  supreme  importance,  in  the 
view  I take  of  it,  that  you  should  find  this  young  wife,  erring,  indis- 
creet, imprudent,  forgetful  of  herself,  if  it  be  so,  but  innocent  of  the 
last  and  greatest  crime  of  a married  woman.  I say,  to  both  parties 
it  is  important.  I cannot  deny,  of  course,  gentlemen,  that  her  in- 
terest in  such  a result  is  perhaps  the  greater  of  the  two.  For  her, 
indeed,  it  is  not  at  all  too  much  to  say,  that  everything  is  staked 
upon  the  result.  I cannot,  of  course,  hope,  I cannot  say,  that  any 
verdict  which  you  can  render  in  this  case,  can  give  her  back  again 
the  happy  and  sunny  life  which  seemed  opening  upon  her  two  years 
ago;  I cannot  say  it,  because  I do  not  think  that  any  verdict  you 
can  render  will  ever  enable  her  to  recall  those  weeks  of  folly,  and 
frivolity,  and  vanity,  without  a blush,  without  a tear;  I cannot  de- 
sire that  it  should  be  so.  But,  gentlemen,  whether  these  grave  and 
impressive  proceedings  shall  terminate  by  sending  this  young  wife 
from  your  presence  with  the  scarlet  letter  upon  her  brow;  whether 
in  this,  her  morning  of  life,  her  name  shall  be  thus  publicly  stricken 
from  the  roll  of  virtuous  women — her  whole  future  darkened  by  dis- 
honor and  waylaid  by  temptation;  her  companions  driven  from  her 
side;  herself  cast  out,  it  may  be,  upon  common  society,  the  sport  of 
libertines,  unassisted  by  public  opinion  or  sympathy  or  self-respect 
— this  certainly  rests  with  you.  For  her,  therefore,  I am  surely  war- 
ranted in  saying,  that  more  than  her  life  is  here  at  stake.  “What- 
soever things  are  honest,  whatsoever  things  are  lovely,  whatsoever 
things  are  pure,  whatsoever  things  are  of  good  report,  if  there  be 
any  virtue,  if  there  be  any  praise,”  all  the  chances  that  are  to  be 
left  her  in  life,  for  winning  and  holding  these  holy,  beautiful  and 
needful  things,  rest  with  you. 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


I cannot,  therefore,  with  my  impression  of  the  importance  of 
this  inquiry,  turn  away  from  her,  even  to  these  parents  whose  hearts 
are  bleeding  also.  But  is  there  not  another  person,  gentlemen,  in- 
terested in  these  proceedings,  with  an  equal,  or  at  least  a supreme 
interest  with  the  respondent,  that  you  shall  be  able  by  your  verdict 
to  say  that  Helen  Dalton  is  not  guilty  of  the  crime  of  adultery,  and 
is  not  that  person  her  husband  ? I do  not  say,  gentlemen,  that  he 
ought  to  feel  or  would  feel  grateful  for  a verdict  that  should  acquit 
her  on  any  ground  of  doubt  or  technicality,  leaving  everybody  to 
suspect  her  guilty;  I do  not  say  that  he  would  feel  contented  with 
such  a verdict  as  that,  though  I say  it  would  be  her  sacred  right 
that  such  a verdict  should  be  rendered,  if  your  minds  were  left  in 
that  state.  He  must  acquiesce,  whether  the  verdict  is  satisfactory 
to  him  in  that  particular  or  not.  But,  gentlemen,  if  you  can  here 
and  now,  on  this  evidence,  acquit  your  consciences  and  render  a 
verdict  that  shall  assure  this  husband  that  a jury  of  Suffolk,  men  of 
honor  and  spirit,  some  of  them  his  personal  friends,  believe  that  he 
has  been  the  victim  of  a cruel  and  groundless  jealousy;  that  they 
believe  that  he  has  been  led  by  that  scandal  that  circulates  about 
him,  and  has  influenced  him  everywhere;  that  he  has  been  made  to 
misconceive  the  nature  and  over-estimate  the  extent  of  the  injury 
his  wife  has  done  him;  if  he  could  be  made  to  believe  and  see,  as 
I believe  you  see  and  believe,  and  every  other  human  being  sees 
and  believes,  that  this  story  of  abortion,  by  which  he  has  been  in- 
duced to  institute  these  proceedings,  is  falser  than  the  coignage  of 
hell;  if  you  can  thus  enable  him  to  see  that,  without  dishonor,  he 
may  again  take  her  to  his  bosom,  let  me  ask  you  if  any  other  human 
being  can  do  another  so  great  a kindness  as  this  ? If  by  your  ver- 
dict you  can  assure  him  that  his  first  thoughts  on  this  subject  were 
right;  that  the  steadiness  and  constancy  with  which  he  held  her  to 
his  heart,  from  the  17th  of  November  down  to  the  morning  of  the 
26th  of  February;  the  steadiness  and  constancy  with  which  he  held 
her  to  his  affections,  after  he  became  aware  of  every  credible  fact 
and  circumstance  that  has  been  put  in  evidence  in  this  case;  if  you 
can  teach  him  that  this  steadiness  and  constancy  were  just  and 
honorable  and  true;  if  you  thus  restore  him  to  his  former  and  bet- 
ter self,  before  he  was  maddened  by  these  falsehoods  and  this 
malignant  conspiracy  by  which  he  has  been  surrounded:  will  it  not 
be  he,  rather  than  she,  that  will  have  occasion  to  bless  you  for  your 
judgment  ? 

Sensitiveness  to  public  opinion,  if  I understand  the  character  of 


252 


SPEECH  OF  RUFUS  CHOATE 


Dalton  at  all,  is  what  has  misled  him;  it  is  other  men’s  judgments, 
not  his  own,  which  have  led  him  to  this  proceeding;  it  is  through 
others’  eyes,  not  his  own,  that  he  has  looked;  and  now  I submit 
that,  if  you  can  only  assist  him  to  follow  in  the  impulses  of  his 
own  heart  without  dishonor,  permit  me  to  say,  you  may  live  long 
and  do  much,  but  to  no  human  being  can  you  do  such  a kindness 
as  this. 

“ Not  poppy,  nor  mandragora, 

Nor  all  the  drowsy  syrups  of  this  world, 

Can  ever  med’cine  thee  to  that  sweet  sleep 
That  thou  ow’d’st  yesterday.” 

It  seems  to  me,  therefore,  gentlemen,  if  my  learned  friend  on 
the  other  side  will  not  deem  it  arrogance  in  me  to  say  so,  that  I am 
here  to  maintain  the  cause,  not  of  the  wife  against  the  husband, 
but  of  both  of  them.  I am  here  to  say,  that  the  husband  has  a 
right  to  his  wife,  and  the  wife  has  a right  to  her  husband.  What 
is  their  case,  gentlemen,  as  it  now  rests,  in  my  own  mind  at  least, 
and  I trust  in  yours,  as  far  as  the  result  is  affected  by  the  whole 
evidence  now  before  us  ? Permit  me  to  state  that  case  exactly  as 
I apprehend  it;  and  when  I have  done,  that  I shall  be  obliged  to 
turn  a little  more  particularly  and  more  methodically  to  what  the 
libellant  has  to  prove,  and  by  what  evidence  he  has  attempted  to 
establish  it;  but  first  let  me  give  you  the  position  of  the  case  as  at 
last  it  rests,  I hope,  upon  your  minds,  certainly  rests  upon  my  own. 

2.  The  narration. 

These  parties  were  married  in  June,  1855;  he  was  very  young, 
I believe  not  more  than  22  or  23  at  the  time,  and  she  was  only  a 
child,  not  yet  eighteen,  at  school  as  late  as  the  January  previous, 
which  she  left  in  consequence  of  her  engagement,  and  to  make 
preparations  for  her  marriage.  She  was  comely,  of  remarkable 
modesty — on  the  testimony  of  Dalton  himself  and  of  Mr.  Richard- 
son— affectionate  and  fond  in  her  nature  and  disposition,  a little 
quick  sometimes,  as  has  been  testified  to,  but  instantly  herself 
again,  and  instantly  hastening,  whenever  a momentary  difference 
had  occurred  between  herself  and  her  husband,  to  make  all  up  by 
throwing  her  arms  around  his  neck — herself  making  the  approach 
to  a reconciliation.  She  was  the  child,  I hope  I may  be  allowed  to 
say,  notwithstanding  the  testimony  of  Mrs.  Joseph  Coburn  given 
here  yesterday,  of  respectable,  Christian  parents,  somewhat  beyond 
the  middle  of  life,  their  youngest  and  not  their  least  beloved,  and 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


253 


they  had  been  diligent  to  afford  her  all  those  opportunities  of  edu- 
cation, moral  and  mental,  which  our  commonwealth  offers  to  all  its 
daughters,  and  they  had  afforded  her,  what  perhaps  is  of  more  im- 
portance to  remember  here,  the  still  more  inestimable  privileges 
and  blessings  of  the  family  altar  and  worship,  and  a Christian,  con- 
stant parental  example.  This  was  Helen  Dalton  that  day — pure  as 
the  falling  flake  of  snow,  pure  as  any  child,  as  any  bride  that  was 
ever  given  in  marriage  at  any  altar.  They  began  their  married  life 
by  living  at  a grave  and  decorous  boarding-house  of  the  first  class — 
Mrs.  Le  Cain’s,  in  Summer  street — full  of  servants,  full  of  boarders, 
and  of  the  highest  respectability  in  all  particulars.  They  were  affec- 
tionately fond  of  each  other,  and  there  was  never,  in  the  history  of 
married,  bridal  life,  a happier  beginning.  Such  is  the  universal 
testimony  in  this  case. 

About  the  20th  or  25th  of  September  she  became,  or  knew  her- 
self to  be,  pregnant;  the  father  of  that  child,  beyond  a particle  of 
controversy,  was  her  lawful  husband.  This  was  the  last  of  Sep- 
tember, a month  before  she  ever  saw  young  Sumner,  two  months 
before  that  ride  to  Brighton  or  Watertown,  previous  to  the  outrage 
on  Shawmut  avenue,  where,  if  at  all,  they  are  to  locate  the  crime. 

3.  Helen  Dalton’s  acquaintance  with  Sumner. 

It  happened,  as  has  been  stated  by  counsel  on  both  sides,  in  the 
opening,  that  not  being  at  housekeeping,  and  her  husband  neces- 
sarily and  without  the  least  fault  on  his  part — creditable  rather  to 
him — detained  from  home  about  his  business,  she  was  very  much 
alone  and  had  very  little  to  do,  and  having  a sister  very  nearly  her 
own  age,  and  a very  respectable  friend.  Miss  Snow — to  whose 
deposition,  given  so  long  ago  you  may  have  forgotten  it,  I shall 
have  occasion  to  revert — having  friends  as  pure  as  she  was  then, 
she  was,  in  that  pleasant  waning  summer  and  beginning  of  autumn, 
very  much  abroad.  I hope  I shall  be  excused  for  saying  to  the 
married  men  upon  the  jury,  that  the  very  restlessness  of  incipient 
pregnancy  may  have  induced  a desire  to  be  abroad.  It  was  during 
this  time  that  she  made  the  acquaintance  of  young  Sumner,  whose 
name,  from  his  connection  with  this  case,  recalls  many  sad  thoughts 
and  memories  of  the  disappointed  hopes  that  cluster  about  him  and 
rest  upon  his  grave.  He  also  was  nothing  more  than  a boy,  with 
some  capacity,  I may  say,  for  refinement  of  sentiment,  a certain 
pleasing  address  and  manner,  with  some  susceptibility  of  disposi- 
tion— not  that  he  was  debauched  or  dissolute — for  his  friends’  sake 


254 


SPEECH  OF  RUFUS  CHOATE 


I thank  God  there  is  not  a particle  of  evidence  that  he  was  a se- 
ducer by  profession  or  design,  only  that  once  or  perhaps  twice  he 
was  hurried  away  by  impulse  into  the  offer  of  a familiarity,  reveal- 
ing a warmer  and  more  ungovernable  sentiment,  which  was  instant- 
ly repelled  and  instantly  and  forever  abandoned.  If  evil  into  that 
immature  nature  came  and  went,  as  evil  will,  it  perished  in  the 
blossom  and  bore  no  fruit. 

4.  Insincerity  of  counsel  as  to  offering  Sumner’s  dying 

DECLARATIONS. 

Gentlemen,  my  learned  brother,  in  opening  his  case,  was  pleased 
to  say  that  he  was  not  at  liberty,  by  the  rules  of  law,  to  give  in 
evidence  certain  imaginary  confessions  made  by  young  Sumner  on 
his  death-bed.  My  learned  brother  will  excuse  me  for  saying  that 
he  has  not  been  quite  so  scrupulous  in  the  offer  of  incompetent 
and  inadmissible  testimony,  as  to  warrant  a belief  in  it  here.  But 
lest  there  should  be  any,  you  will  remember  that  my  associate,  after 
consultation  with  myself,  in  his  opening  argument,  challenged  the 
learned  counsel — pledging  us  to  waive  every  objection  on  the 
ground  of  incompetency  or  the  order  of  trial — challenged  him  to 
produce  the  brother  of  Mr.  Sumner,  who  hung  over  his  dying  bed 
and  received  his  last  words.  The  witness  was  before  you,  gentle- 
men, called  on  two  or  three  comparatively  unimportant  points  in 
this  case,  and  constantly  under  the  eye  of  the  counsel  on  the  other 
side.  We  challenged  him  to  produce  him,  to  say  whether  or  not, 
in  that  last  hour,  in  that  moment  of  unutterable  solemnity,  just 
when  he  was  passing  into  the  presence  of  the  All-seeing  One,  he 
went  out  of  the  wdrld  confessing  or  denying  that  he  had  committed 
this  act.  Gentlemen,  let  the  fact  that  my  learned  brother  has  not 
ventured  to  meet  this  challenge,  go  for  the  proof.  Men  may  live 
fools,  but  fools  they  cannot  die. 

5.  No  EVIDENCE  OF  IMPROPER  INTIMACY. 

Well,  gentlemen,  this  acquaintance  began  the  middle  of  Octo- 
ber; I pray  you,  as  I may  not  think  it  worth  while  to  spend  time 
to  recur  to  it  again — I pray  you  take  it  here  that  there  is  not  a 
scintilla  of  evidence  that  she  ever  saw  him  in  her  life  until  the 
middle  of  October.  She  was  then  pregnant  by  her  husband  six 
weeks.  What  the  nature  of  their  acquaintance  was,  so  far  as  it 
consisted  in  outside,  visible  evidence,  I think  we  have  been  able  to 
lay  before  you  exactly.  They  met  occasionally  in  the  streets; 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


255 


sometimes  at  Fera’s  and  Vinton’s  saloons.  I think  we  hear  of  two 
rides  in  omnibuses,  in  w'hich  were  all  four  (Mr.  Sumner  and  Mr. 
Porter,  Mrs.  Coburn  and  Mrs.  Dalton),  the  omnibuses  full  of  pas- 
sengers ; they  drove  once  to  Cambridge  in  a carriage,  according  to 
the  testimony  of  the  driver  Burns,  four  together,  the  windows  all 
open;  and  once  only  rode  out  alone.  That  she  was  ever  out  walk- 
ing with  him  after  the  sun  went  down,  that  they  ever  met  but  in 
the  broadest  daylight,  that  he  ever  insulted  or  astonished  her  by  an 
invitation  to  a house  of  assignation,  that  they  ever  met  anywhere 
but  in  the  broad  light  of  day,  but  in  the  presence  of  everybody, 
except  on  the  single  occasion  of  the  ride  to  Brighton,  there  is  not 
a particle  of  proof.  I advert  now  to  the  deposition  of  Miss  Snow. 
Perhaps  you  have  forgotten  that  they  asked  that  respectable  wit- 
ness, called  by  themselves,  whether  she  ever  knew  or  heard  of 
Helen  Dalton’s  going  with  Sumner  to  a house  of  assignation  or  a 
house  of  pleasure,  and  she  denied  that  she  had  ever  heard  or  known 
such  a thing  in  her  life.  Therefore  I have  the  honor  to  repeat,  in 
order  that  we  may  not  exaggerate  the  matter,  and  may  have  the 
whole  of  this  part  of  the  cause  before  us — I say  I have  the  honor 
to  repeat  that  these  interviews,  Mr.  Foreman,  were  no  walks  by  dusk 
or  moonlight,  no  meetings  by  the  insidious  and  seductive  light  and 
music  of  the  house  of  pleasure,  no  walk,  no  meeting,  anywhere,  on 
any  occasion,  alone,  but  a single  ride  on  the  15  th  or  i6th  of  No- 
vember. 

6.  Mrs.  Dalton’s  love  for  her  husband. 

Gentlemen,  of  this  intimacy  between  Helen  Dalton  and  Mr. 
Sumner,  I hold  the  same  opinion  with  regard  to  it  that  the  father 
expressed  through  his  tears  upon  the  stand.  I look  upon  it  with 
abhorrence.  I regard  it  exactly  as  Helen  Dalton  everywhere,  in 
every  word  she  uttered,  in  every  line  she  wrote,  whenever  her  burst- 
ing tears  enabled  her  to  speak  her  thoughts,  shows  that  she  re- 
garded it.  But  we  are  here  on  a charge  of  adultery,  and  I have 
the  honor  to  submit  to  you,  gentlemen,  after  the  most  careful  and 
thoughtful  consideration  and  weighing  of  evidence  in  this  case, 
under  responsibilities  professionally  as  severe  and  as  oppressive  as 
those  under  which  I ever  assisted  to  try  a case  in  my  life;  I re- 
spectfully submit,  on  a review  of  that  evidence,  these  two  views 
will  have  the  approbation  of  every  candid  mind.  I submit  that  she 
never  came  to  love  young  Sumner  with  that  impulsive,  absorbing, 
engrossing  love  that  endangers  virtue  and  conquers  shame.  I sub- 


256 


SPEECH  OF  RUFUS  CHOATE 


mit,also,  gentlemen,  that  there  was  never  a moment,  during  their 
whole  intercourse,  when  the  thought  of  criminal  connection  was 
entertained  by  her  for  a moment — never  one.  Young,  comely, 
vain,  as  may  be  with  her  sex  and  in  her  condition,  in  her  father’s 
family,  trained  to  but  little  intercourse  with  the  world,  the  society 
and  pleasing  manners  of  this  young  man  tickled  her,  afforded  her 
pleasure,  playing  round  the  head,  but  going  not  near  the  heart. 
But  I mean  to  maintain,  and  I shall  base  the  defense — a triumphant 
defense  in  this  case,  unless  I deceive  myself  upon  it — that  her  hus- 
band had  her  heart  at  first,  and  has  it  to-day;  that  this  attachment 
(if  you  please  to  call  it  so)  was  merely  a transient  and  superficial 
feeling,  a false,  fickle  light  on  the  surface  of  the  stream,  whose 
depths  were  unchanged,  untroubled,  undisturbed.  How  well  she 
loved  him  we  shall  see,  if  you  will  permit  me  to  go  a little  into  the 
argument  of  the  cause.  The  whole  case  is  full  of  evidence  to  show 
the  affection  of  the  earlier  period  of  their  married  life.  There  are 
the  three  weeks  after  the  Shawmut  avenue  tragedy;  those  two  days 
when,  during  those  three  weeks,  her  husband  having  absented  him- 
self, she  knew  not  why,  she  went  for  him,  half  distracted,  every- 
where, going  at  a late  hour  in  the  evening  to  his  mother’s  house; 
her  following  him  to  jail,  hovering  about  that  cell,  a beam  of  light, 
a dove  of  constant  presence;  those  letters — in  the  whole  history  of 
the  human  heart  there  is  nothing  to  equal  the  depth  of  feeling,  the 
beautiful,  inexpressible,  undimmed  affection  they  exhibit,  down 
even  to  the  very  last,  in  which  she  breathes  out  the  thoughts  of  a 
breaking  heart;  how  well  she  loved  him  from  the  first,  how  con- 
stantly she  loved  him  through  the  whole,  and  how  light  and  tran- 
sient and  superficial  was  this  intimacy  with  Mr.  Sumner,  I shall  have 
the  pleasure,  by  and  by,  of  stating  my  opinion. 

7.  Sumner’s  desires  indignantly  repelled. 

I say,  also,  for  the  second  view  of  this  intercourse  between 
her  and  Sumner,  that  it  is  beyond  all  reasonable  controversy, 
that  the  very  first  time  that  . Sumner  suffered  himself  to  be  hur- 
ried away  by  a momentary  impulse  into  expressions  that  revealed 
the  existence  of  warmer  desires,  she  instantly  met  and  instantly 
repelled  them.  Will  you  ever  forget,  gentlemen,  that  only  a day 
or  two  before  the  Shawmut  avenue  tragedy,  having  discovered 
by,  it  may  be,  a touch  of  the  foot  or  of  the  hand,  the  existence  of 
these  warm  emotions,  she  thereupon  repelled  him,  snatched  her 
letters  from  his  hands,  tore  them  up,  and  threw  them  out  the  window? 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


257 


Have  you  forgotten  that  one  of  the  letters  of  Sumner  to  her  was 
never  opened  by  her,  but  found  unopened  ? Well  did  Dalton  com- 
ment upon  that  fact  when  he  said  to  Mr.  Richardson,  she  could 
not  much  have  loved  him  to  have  left  his  letter  unopened.  And  I 
submit  to  you  further,  gentlemen, — the  evidence  will  show  you 
whether  I am  warranted  in  these  strong  introductory  statements — 
that  when  at  Brighton  or  at  Watertown,  he,  probably  for  the  first 
time  in  his  life,  distinctly  conveyed  an  intimation  of  his  wishes,  how 
she  started  back  from  him,  burst  out  crying — on  the  testimony  of 
Mrs.  E.  O.  Coburn,  their  witness,  and  to  be  believed  by  them — and 
commanded  that  he  should  instantly  drive  her  home  again  to  Boston. 

8.  Defendant’s  full  and  complete  revelations. 

The  letters  were  found;  the  Shawmut  avenue  tragedy  was  en- 
acted; Sumner  was  brought  into  her  presence  and  made  certain 
statements.  The  next  Sunday  night,  in  the  presence  of  the  Dal- 
tons, of  whom  I am  bound  to  say,  although  they  have,  perhaps 
with  the  best  motives  towards  their  kinsman,  perhaps  intentionally 
and  perhaps  unintentionally,  urged  him  to  this  proceeding;  not- 
withstanding this,  I have  the  greatest  pleasure  in  saying  that  they 
stand  out  in  extraordinary  comparison,  as  a family  of  witnesses  and 
of  blood,  with  that  other  family  which  figures  so  largely  and,  as  I 
shall  show  you  by  and  by,  so  disgracefully  in  the  case.  In  their 
presence,  on  the  Sunday  night  after  the  tragedy,  she  made  a full  and 
complete  revelation  of  her  way  of  life  with  Sumner,  in  the  presence 
of  her  husband  and  of  his  family;  admitted  there,  as  everywhere,  her 
own  grief,  shame  and  compunction  for  what  had  taken  place,  but 
protested  her  absolute  innocence  of  the  last  and  greatest  crime, 
just  as  she  had  once  before,  when  Dalton  proposed  that  test,  sunk 
down  on  her  knees,  with  her  hand  on  her  father’s  gift,  the  Bible, 
and  solemnly  swore  her  innocence  of  that  charge;  just  as  she  had, 
in  that  even  more  solemn  moment  when  the  pains  of  premature 
birth  were  upon  her,  in  the  presence  of  Mr.  Richardson,  adjured 
her  Maker  that  she  was  innocent. 

9.  Dalton,  with  knowledge  of  all  the  facts,  believed 

HIS  WIFE  INNOCENT. 

This  brings  me  to  that  great  fact  which  I apprehend  you  will 
believe  to  be  decisive  in  the  case,  that  the  libellant — with  the  knowl- 
edge of  every  single  credible  fact  and  circumstance  which  is  laid 
before  you  in  this  cause,  and  with  the  full  and  perfect  knowledge 

17 


258 


SPEECH  OF  RUFUS  CHOATE 


of  everything  but  this  enormous  and  outrageous  and  barbarous 
falsehood  of  abortion,  which  was  an  after-thought;  with  a full  and 
perfect  knowledge  of  her  intimacy  with  Sumner,  her  rides  with  him, 
her  going  to  saloons,  her  exchange  of  rings  and  letters,  the  gift  of 
a book,  and  the  knowledge  of  the  still  further  fact  that  on  one  oc- 
casion Sumner,  in  a moment  of  passion,  had  reached  his  hand  into 
her  bosom;  with  the  knowledge  of  every  fact  and  declaration  on 
which  this  jury  will  place  a particle  of  reliance — declared,  not  merely 
by  his  language,  but  by  acts  and  conduct  the  most  unequivocal, 
that  he  believed  her  innocent  of  that  crime,  and  loved  and  trusted 
her  still.  And  so  I have  to  repeat,  for  it  seems  to  me  that  in  this 
view  the  argument  will  appear  to  be  conclusive;  I repeat  that  down 
to  that  time,  through  all  that  interval,  from  the  17th  of  November 
down  to  the  14th  of  January,  with  the  knowledge  of  every  credible 
fact  and  circumstance,  Dalton,  who  knew  his  wife  so  much  better 
than  we  can  know  her,  who  knew  how  pure  as  an  angel  she  came 
to  his  bed,  who  knew  when  she  spoke  the  truth,  who  knew  how 
tenderly  she  had  loved  him,  who  knew  so  much  better  than  we  can 
know  how  to  probe  her,  how  to  practice  upon  her,  how  to  surprise 
her  into  confession;  he  who  had  even  a chance  to  watch  over  her 
sleep  and  hear  the  revelations  of  her  dreams,  he  loved  her  and  be- 
lieved her  innocent  of  this  charge  down  to  the  14th  of  January — 
down  to  that  date,  I respectfully  submit,  the  fact  will  not  admit  of 
controversy.  Once  for  all,  gentlemen,  remember  that  series  of  let- 
ters from  the  jail,  so  honorable  to  his  first  thoughts,  showing  him 
still  so  well  worthy  to  be  the  husband  of  this  wife;  those  letters 
from  the  jail,  so  beautiful,  so  manly — unless  he  was  deceiving  her, 
which,  of  course,  he  was  not — one  long,  unbroken  strain  of  music, 
the  burden  of  which  is  “ home,  sweet  home,  and  you,  my  loved 
one,  my  fond  one,  dearer  and  better  for  what  has  happened,  you 
again  to  fill  and  illumine  and  bless  it.”  So  it  stood  down  to  the 
14th  of  January,  which  brings  us  to  a great  epoch  in  the  history  of 
this  case. 

10.  Why  plaintiff  did  not  meet  his  wife  pending  his  trial 

FOR  HOMICIDE. 

We  come  now,  Mr.  Foreman  and  gentlemen,  to  this  law  suit. 
The  grand  jury  found  no  bill  against  Mr.  Dalton  and  Mr.  Coburn 
for  murder,  but  indicted  them  for  manslaughter.  On  the  charge  of 
murder  they  were  to  be  released,  and  were  released.  They  came 
abroad  on  the  14th  of  January,  and  then  at  once  they  were  to  pre- 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


259 


pare  for  their  trial,  which  promised,  at  that  time,  to  be  a very  severe 
one.  The  punishment  for  manslaughter  may  be  twenty  years  in 
the  State  prison,  and  of  manslaughter  both  these  parties  were  at 
that  time  believed  by  the  public  to  be  guilty;  they  were  believed  to 
have  aided  in  sending  that  boy  to  his  dishonored  and  untimely 
grave.  Public  opinion,  whatever  that  is  worth,  was  undoubtedly 
against  them  both,  especially  against  E.  O.  Coburn,  as  the  oldest 
and  probably  the  leader  in  that  tragedy;  and  he  having  taken  it 
into  his  head  to  console  his  domestic  grief  by  stealing  $1,700  from 
his  father-in-law’s  safe,  by  keys  false,  or  otherwise,  was  somewhat 
distrusted  and  as  likely  to  undergo  a pretty  severe  trial  at  the  bar 
of  public  opinion.  To  change  that  public  opinion,  and  in  order 
to  a defense  against  the  charge  of  manslaughter,  it  became  neces- 
sity that  there  should  be  a belief,  or  at  least  an  appearance  of  be- 
lief, in  the  guilt  of  Sumner.  And  therefore,  gentlemen,  at  some 
time,  the  precise  time  is  not  practicable  nor  is  it  necessary  to  fix, 
but  at  some  time,  and  at  some  short  time,  too,  before  leaving  the 
jail,  it  was  arranged,  unquestionably  through  the  influence  of  coun- 
sel (not  of  my  brother  Dana,  who,  I believe,  was  not  engaged  in 
this  early  stage  of  the  case),  that  when  Dalton  and  Coburn  should 
go  abroad,  they  should  not  publicly  meet  their  wives.  To  go  into 
court  and  maintain  that  Sumner  had  attempted  or  committed  adul- 
tery, and  to  maintain  that  in  the  sincere  belief  of  his  guilt  they  had 
killed  him,  and  at  the  same  time  publicly  consort  with  their  wives, 
would  seem  inconsistent  and  impolitic;  and  so  it  was  arranged — 
I do  not  know  as  I have  to  complain  of  it  as  an  impolitic  or  inex- 
pedient arrangement — that  they  should  not  meet  their  wives  at  all. 
Therefore  it  is  that  you  hear  from  Mr.  Richardson,  that  Mr.  Dal- 
ton wrote  to  him  that,  although  he  had  arranged  to  meet  his  wife 
at  once,  it  would  not  be  expedient  for  him  to  meet  her  until  after 
the  trial;  otherwise  he  should  be  very  glad  to  see  her.  They  came 
abroad,  and  although  in  almost  the  very  last  letter  which  he  wrote 
to  his  wife  from  the  jail,  he  expressed  a desire  to  fly  to  her  arms,  he 
refused  to  see  her,  and  did  not  see  her  at  all. 

II.  Influences  which  prejudiced  the  husband. 

So  it  remained  down  to  the  25th  of  February.  I said,  and  I 
repeat,  that  I do  not  know  that  this  was  very  impolitic  or  inexpe- 
dient, or  that  it  is  to  be  complained  of  at  all;  but  I pray  you  now 
to  see  the  history  of  the  libel.  The  very  moment  he  places  him- 
self in  this  position,  he  comes  to  be  in  an  antagonistic  and  false 


260 


SPEECH  OF  RUFUS  CHOATE 


position  towards  her  from  the  nature  of  the  case;  the  habit  of 
dwelling  on  the  offenses  or  supposed  offenses  of  Sumner  very  nat- 
urally brought  his  mind  into  something  like  suspicion  or  belief 
that  Sumner  was  guilty,  and  that  brought  him  to  a willingness  or 
necessity  to  believe  that  his  wife  was  guilty  too.  At  all  events,  it 
brought  him  into  a condition  of  complete  perplexity  of  mind,  and 
surrounded  him  with  ten  thousand  influences  which  poured  into 
his  abused  ears  and  loaded  his  bosom  with  jealous  doubts.  His 
family  and  friends,  insidious  enemies  pretending  to  be  friends, 
gossipers  and  scandal-mongers  right  and  left,  the  whisper  of  public 
opinion  to  which  Dalton  is  emphatically  sensitive,  the  laugh  of  by- 
standers, all  came  around  him  as  an  atmosphere,  and  brought  him 
to  that  condition  so  strikingly  represented  by  the  greatest  master  of 
the  heart — “ Perplexed  in  the  extreme  ” — '‘^Perplexed  in  the  ex- 
treme P He  came  to  know  what  I trust  few  hearts  know — 

“ What  damned  minutes  tells  he  o’er, 

Who  dotes  yet  doubts,  suspects,  yet  strongly  loves.” 

Gentlemen,  there  is  not  in  the  whole  history  of  human  nature, 
in  fact  or  fiction,  a more  remarkable  and  affecting  illustration  of 
the  degree  of  perplexity  to  which  the  human  mind  can  be  brought, 
than  this  of  the  condition  of  Mr.  Dalton’s  mind  at  that  time. 

12.  Defendant’s  alleged  confession  explained. 

Then  we  have  another  important  fact  in  this  case.  You  re- 
member how  he  wrote  along  all  the  way  down  to  the  12th  of  Janu- 
ary, how  fondly  he  loved  and  trusted  her,  and  how  happy  he  hoped 
they  would  yet  be.  As  early  as  the  5th  of  February,  before  he 
heard  one  solitary  fact  or  circumstance  of  which  we  have  a particle 
of  credible  evidence,  so  far  as  we  can  discern,  before  the  story  of 
the  abortion  was  concocted  to  poison  his  mind,  my  brother  Dana 
was  called  upon  to  give  us  notice  of  the  libel.  And  then,  more 
strongly  to  bring  to  mind  another  illustration  of  the  perplexed  con- 
dition of  his  mmd  at  that  time,  do  you  remember  that  Mr.  Richard- 
son testified  that  Mr.  Dalton  told  him,  with  all  the  sincerity  in  the 
world,  that  his  wife  had  actually  confessed  to  him  that  she  had 
committed  adultery  with  Sumner  in  Fera’s  saloon  ? “I  believe  her 
innocent,”  he  says,  and  then  comes  on  the  revulsion  v/hich  is 
the  natural  result  of  the  perplexed  condition  of  his  mind,  and  he 
says,  she  confessed  to  me  that  she  committed  adultery  in  Fera’s 
saloon.”  Did  she  ever  confess  to  adultery  in  Fera’s  saloon  ? You 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


261 


know  perfectly  well  she  never  did.  “When  did  she  confess  it?** 
“At  the  time  of  the  flogging  affair.’*  And  yet,  after  the  flogging 
affair,  he  holds  her  to  his  heart  and  his  bed  for  three  weeks,  and 
writes  her  these  tender  and  manly  letters  from  jaii.  He  understood 
exactly  what  she  confessed  then.  She  confessed  then  what  she  has 
everywhere  confessed,  by  her  words  and  letters,  temptation,  wrong, 
sin,  but  no  adultery — 710  adultery  ! Accordingly,  gentlemen,  he 
lived  with  her  and  wrote  to  her,  and  she  was  his  wedded  and 
trusted  wife  for  a month  afterward.  But  now,  in  this  perplexed 
and  false  position  in  which  he  stood  towards  her,  preparing  for  his 
trial,  with  ten  thousand  whisperers  at  his  elbow,  he  actually  brought 
himself  to  the  belief  that  she  had  confessed  it!  How  striking  an 
illustration  that  is,  by  the  way,  of  the  danger  of  these  confessions! 
What  a lesson  of  candor  and  caution  and  good  sense  it  teaches  a 
jury,  as  to  weighing  alleged  confessions  put  in  evidence. 

However,  there  he  was,  from  the  14th  of  January  down  to  the 
25th  of  February,  away  from  her,  among  her  enemies,  his  heart  en- 
crusted over,  though,  as  we  shall  see  in  a moment,  a deep  fountain 
of  love  and  trust  was  there  even  yet. 

13.  Meeting  of  the  husband  and  wife,  after  their 

SEPARATION. 

We  come  now  to  the  25th  of  February.  What  happened  then, 
gentlemen  ? This  wife  had  been  kept  from  his  sight  from  the  time 
he  left  jail,  on  the  14th  of  January  down  to  the  25th  of  February; 
more  than  a month  she  had  never  seen  him.  On  that  night,  winged 
by  that  love  which  was  stronger  than  the  malignity  of  the  Coburns, 
that  love  which  is  said  (if  I may  be  excused  the  expression  in  a 
cause  so  grave  as  this)  to  “ laugh  at  locksmiths,’*  she  forced  her 
way  to  his  presence  in  the  very  house  of  her  enemies,  his  enemies, 
and  the  enemies  of  truth.  Gentlemen,  what  took  place  there  on 
that  evening  of  the  25th  of  February  can  never,  of  course,  be  per- 
fectly known  until  all  secrets,  large  and  small,  shall  be  revealed; 
but  I have  no  fear  but  that  the  intelligence  of  this  jury  will  pene- 
trate that  interview,  and  I have  no  fear  but  that,  turning  with  dis- 
gust from  the  perjury  of  John  H.  Coburn,  you  will  see  that  these 
were  the  transactions  of  this  evening:  They  met  there  after  a long 
separation.  The  meeting,  at  the  commencement  was  most  painful, 
beginning  in  a review  of  the  past,  interrupted,  of  course,  by  sobs 
and  tears,  in  which  she  again  reviewed  and  reiterated,  and  prayed 
him  to  forgive  her  for  what  she  had  done,  the  very  same  story  she 
had  told  at  the  house  of  his  mother  the  Sunday  after  the  tragedy; 


262 


SPEECH  OF  RUFUS  CHOATE 


and  then  and  there,  I respectfully  submit,  you  will  find  on  the 
proof  that  the  husband  trusted  her  again  completely,  as  he  had 
done  from  the  beginning,  and  surrendered  his  heart  and  person  to 
her;  that  they  then  locked  that  door,  and  there  remained  alone  un- 
til some  one,  rapping  upon  the  outside,  reminded  them  of  what  they 
seemed  to  have  forgotten,  so  fast  had  the  hours  flown  by  that  it  was 
past  nine  o’clock.  Instead  of  meeting  there  to  make  arrangements 
for  a separation  of  husband  and  wife,  which  is  the  theory  of  the 
other  side — instead  of  that  it  was  a still  more  sad  and  self-reproach- 
ful confession  of  all  that  she  had  ever  done,  asseverating  and  con- 
stantly avowing  her  innocence  of  guilt;  and  he,  then  and  there, 
finding  he  had  no  criminal  guilt  to  pardon,  pardoned  and  forgave 
the  rest,  and  they  locked  their  door  and  sat  down  to  sketch  out  the 
plan  of  their  future  troubled  life.  It  was  not  expedient  or  practi- 
cable that  they  should  meet  publicly,  for  his  sentence  was  still 
hanging  over  his  head;  but  they  sat  down  then  and  there  to  arrange 
their  future  life,  as  he  in  terms  told  her  father.  They  parted  with 
the  understanding  that  the  first  meeting,  somewhat  privately  from 
the  Daltons  and  Coburns,  was  to  take  place  at  the  house  of  Mrs. 
Richardson,  her  sister,  on  the  night  following. 

I cannot  possibly  abstain,  as  I see  it  lying  under  my  eye,  from 
recurring  to  that  mutilated  letter  which,  because  it  had  been  muti- 
lated, his  honor  declared  inadmissible,  but  which  came  in  by  our 
consent  last  night.  I ask  you  to  turn  to  that,  and  see  if  it  does  not 
reveal  that  this  “poor  creature”  (as  even  Mary  Hunter  was  con- 
strained to  call  her;  went  away  from  that  interview,  walking  in  the 
air,  in  the  clouds;  a new  world,  a recovered  husband,  a happy  future 
opening  before  her.  Hear  her,  and  not  my  colder  language: 

“My  much  loved  husband:  In  our  meeting  yesterday,  I see  a 
bright  hope  and  prospects  of  a happy  future  before  me.  Oh!  dear 
Frank,  I hope  that  the  day  will  come  when  we  shall  be  happy  soon. 
I feel  much  happier  than  I did  yesterday.  [Why  “ much  happier  ?” 
Because  she  has  told  everything  ? Because  she  has  a great  load 
off  her  conscience  ? No,  gentlemen!]  I feel  now  as  if  I had  a 
dear  husband  to  live  for;  before  I felt  as  if  I did  not  care  to  live; 
I had  nothing  to  live  for.  But  oh!  what  a beautiful  thought  now 
fills  my  heart — that  I have  him,  dear  Frank,  to  live  for;  him  to 
build  all  my  future  hopes  on;  his  strong  arm  to  lean  on;  his  dear 
words  and  sweet  smiles  to  encourage  me;  and  if  I should  ever 
falter,  I have  Frank  to  say,  cheer  up,  Nellie,  we  shall  soon  be 
happy.  It  seems  as  if  I could  not  express  on  paper  my  thoughts; 
but  I long  to  fly  to  his  arms,  and  lay  my  face  close  to  his,  and  then 
tell  him  all  my  heart.” 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


263 


Judge  you,  gentlemen,  judge  you,  whether  or  not  that  letter  was 
written  the  morning  after  a confession  that  must  have  wrung  tears 
from  the  eyes,  and  drops  of  ruddy  blood  from  the  heart  of  the  hus- 
band who  parted  them  forever!  No,  gentlemen!  I repeat,  they 
met;  the  meeting  was  sorrowful  at  first;  at  first  it  was  a review  of 
the  melancholy  past;  it  was  repentant  of  that  past;  it  was  the  as- 
sertion of  innocence;  it  was  the  delicious  belief  of  innocence;  it 
was  the  arrangement  of  a future  life,  based  upon  that  belief;  and 
therefore  it  is  that  when  she  awakes  the  next  morning  a new  sun  is 
shining,  there  is  a new  heaven  and  a new  earth. 

14.  Object  and  purpose  of  the  story  of  the  wife’s  crime 

EXPOSED. 

But  what  followed  ? He  could  not  be  publicly  seen  with  her, 
and  Edward  O.  Coburn  went  home  with  her  that  night,  and  Edward 
O.  Coburn  Had  discernment  enough  to  find  out  how  it  was  with 
them — that  she  had  won  her  husband  back  again;  and  even  he, 
although  he  is  a man  who  will  mutilate  her  letters  and  turn  them 
by  forgery  as  far  as  he  can  into  a lie,  even  he  was  obliged  to  admit 
upon  the  stand  that  she  told  him  that  she  felt  better  that  night,  for 
she  was  going  to  see  her  husband  again  the  next  night.  Then  it 
was  that  these  parties,  the  Coburns,  finding  that  the  husband  and 
wife  were  going  to  come  together  again  at  last,  and  that  all  was  likely 
to  be  over,  then  and  there  it  was,  I respectfully  submit  to  you,  that 
they  fabricated  and  reported  to  Dalton  this  hideous  and  unutter- 
able falsehood  of  the  abortion  by  the  instrument  of  Dr.  Calkins. 
I submit  to  you,  gentlemen,  that  then  and  there  it  was  that  they 
approached  his  abused  and  ready  ear  with  that  infamous  story  of 
abortion.  There  was  exactly  enough  of  truth  for  falsehood  and 
malignity  to  work  upon.  The  truth  had  been  exactly  this  : Mrs, 
Dalton  had  suffered  a premature  birth.  Grief  and  care  which  were 
entirely  adequate  to  produce  the  effect,  according  to  the  testimony 
of  the  medical  witnesses  who  have  been  upon  the  stand,  had  pre- 
maturely nipped  in  its  bud  of  life  her  progeny.  Three  times,  in- 
cluding the  last  one,  she  had  been  attacked  by  the  pains  of  miscar- 
riage, and  three  times  that  Christian  matron,  mother,  of  whose 
credibility  I shall  by  and  by  have  the  honor  to  say  something, 
but  on  whose  credibility  I with  undoubting  confidence  rely — this 
Christian  mother,  when  these  attacks  came  on,  herself  familiar  with 
that  agony  and  pain,  applied  to  her  a mother’s  care  and  a mother’s 
love,  and  along  with  these,  those  old  mother  remedies,  warm  water 


264 


SPEECH  OF  RUFUS  CHOATE 


for  the  feet  and  composition  powders;  not  to  produce  miscarriage, 
because  that  event  was  believed  to  be  inevitable,  but  in  the  vain 
idea — for  Dn  Clark  has  told  you  that  they  were  worthless  for  this 
purpose  —that  they  might  a little  relax  the  system  and  diminish  the 
agony,  and  if  miscarriage  must  happen,  a little  relieve  the  suffer- 
ings of  her  child.  If  for  that  this  Christian  mother  is  to  stand 
condemned  and  judged  as  a party  to  the  murder  of  that  young  life, 
God  have  mercy  upon  us!  I hope  there  is  no  one  on  that  jury  who 
is  a victim,  as  I am,  periodically,  to  sick  headache,  as  I should  just 
as  soon  expect  to  have  my  wife  accused  of  murder,  because  when 
that  torture  is  upon  me,  she  is  in  the  habit  of  coming  to  me  with  a 
little  warm  water  and  bathing  my  head,  in  the  hope  that  possibly  it 
may  relieve  in  some  degree  the  agonizing  throbs.  Is  it  adminis- 
tered to  cause  sick  headache — judge  you  as  you  would  be  judged — 
or  in  the  hope  that  the  pain  would  be  assuaged,  the  system  relaxed, 
the  time  of  suffering  shortened  ? This  is  what  they*  have  done. 
The  two  first  cases  of  this  difficulty  passed  off.  While  she  was 
suffering  from  the  third  attack,  her  brother-in-law  broke  in  upon 
her  and  told  her  that  her  husband  had  refused  to  see  her  and  to 
live  with  her,  and  then,  after  an  agony  of  tears  and  another  appeal 
to  her  Maker  that  she  was  innocent,  the  miscarriage  took  place. 

On  that  foundation  I say,  gentlemen,  I submit  it  is  perfectly 
true  that  these  men  then  and  there  fabricated,  out  of  whole  cloth, 
the  story  of  an  intentional  abortion  by  the  agency  of  Dr.  Calkins. 
I shall  by  and  by  have  occasion  to  show  you  how  unutterably  false 
is  that  story;  false  everywhere,  disproved  by  the  weight  of  irresist- 
ible evidence  in  this  case.  But  I advert  to  it  here  and  now  only 
for  the  purpose  of  showing  you  how  it  was  that  the  last  blow  was 
struck,  and  Mr.  Dalton  was,  for  the  present  at  least,  if  not  forever, 
separated  from  his  wife.  And  that  fiction  did  the  business,  and  he 
thenceforward  surrenders  himself  to  his  friends,  as  they  called 
themselves — his  enemies,  as  I think — and  here  he  is,  upon  such  tes- 
timony as  they  enable  him  to  lay  before  you. 

Here  Mr.  Choate  spoke  of  the  painful  duties  of  counsel  and  the  jury.  He 
then  referred  to  the  subject  of  public  trials,  as  follows  : 

15.  Necessity  and  propriety  of  public  trials. 

Our  habits  are  for  public  trial  and  investigation,  and  our  liber- 
ties will  last  just  as  long  as  our  trials  are  public,  and  not  a moment 
more.  We  agree  in  that;  we  have  this  love  of  a public  trial  from 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


2G5 


our  ancestors.  Who  does  not  remember  a remarkable  case  a few 
years  ago,  when  her  majesty  the  queen  of  England  was  arraigned 
before  the  House  of  Lords  on  a charge,  and  assailed  by  a body  of 
trash,  compared  with  which  the  evidence  of  Mrs.  Coburn  is  as  in- 
nocent as  one  of  Dr.  Watts’  psalms  or  hymns.  And  here  I would 
like  to  ask  your  honor  and  this  public,  whether  or  not,  if  it  had 
been  proposed  to  try  that  cause  under  lock  and  key  at  a long 
table  covered  with  baize  and  by  lamp  light,  the  people  of  England 
would  have  borne  it  ? They  would  have  thrown  every  lord  and 
bishop  into  the  river,  and  piled  the  stones  of  the  parliament 
house  on  their  heads;  but  they  would  have  seen  that  trial  and 
heard  that  trial.  Do  you  think  that  was  for  the  love  of  offensive 
exhibitions,  gentlemen  ? I have  the  honor  to  believe,  for  the 
country  of  my  descent  and  yours,  that  was  the  old  English  love 
of  fair  play.  They  wanted  to  see  how  this  was  to  be  done,  and 
how  it  v/as  that  a set  of  Italian  rascals  and  villains  that  ought  to 
have  been  hanged  forty  years  before  they  came  over  to  England 
to  testify,  were  going  to  prove  that  the  greatest  of  queens  could 
become  the  wickedest  of  women.  It  was  an  inclination  to  see  that 
done;  and  if  John  H.  Coburn  must  separate  this  man  and  wife, 
people  want  to  know  how  it  is  brought  about,  and  surround  the 
jury  to  see  with  their  eyes  and  take  something  of  the  benefit  of 
their  judgment.  Shame  to  him  who  evil  thinks.  I said,  and  say 
again,  no  man  is  hurt  by  this  trial  who  was  worth  saving  when  he 
came  into  court.  Shame  to  him  who  evil  thinks!  The  man,  the 
mind,  the  heart  that  could  go  through  such  cases  as  this,  listen  to 
this  sad,  melancholy  story  of  bridal  love,  of  jealousy,  of  misery,  of 
sorrow,  of  broken  hearts,  of  willful  perjury,  and  carry  away  no 
impression  but  of  its  obscenity,  reminds  one  of  an  expression  used 
by  the  pastor  of  your  Brattle  street  church,  who  said  he  could  go 
through  a gallery  of  art,  containing  the  pictures  of  heroes  and 
demi-gods,  with  no  impression  but  that  they  were  all  stark  naked. 
Shame  to  him  who  evil  thinks.  Let  us,  gentlemen,  not  suffer  our 
delicacy  to  prevent  our  doing  our  duty;  the  result  is  to  be  one 
which  may  interest  the  heart  and  affections  and  improve  the  life. 

i6.  The  presumption  of  innocence. 

We  begin  this  trial,  Mr.  Foreman  and  gentlemen,  by  taking  with 
us  a familiar  principle  of  the  law — by  the  presumption  that  every- 
body, and  especially  the  defendant,  is  innocent  until  clearly  proved 
guilty.  We  begin  with  the  presumption  that  it  is  in  the  last  degree 


266 


SPEECH  OF  RUFUS  CHOATE 


improbable  that  a young  bride,  in  the  fifth  month  of  her  marriage 
and  the  second  month  of  her  pregnancy,  affectionate,  modest,  of 
Christian  training,  has  committed  the  greatest  crime  of  woman. 
We  take  with  us,  gentlemen,  merely  that  the  circumstance  that  she 
has  been  engaged  in  what  Edward  O.  Coburn  said  he  thought  was 
a flirtation,  and  nothing  more,  with  young  Sumner,  does  not  prove 
that  the  last  great  step  is  taken.  We  believe  this,  and  take  this 
with  us,  because  we  know  it  to  be  so,  perfectly  well.  We  ourselves 
and  those  we  love  best,  rejoice  to  know  that  it  does  not  follow  be- 
cause one  step  has  been  taken,  all  have  been.  We  take  with  us  the 
ordinary  principle,  too,  by  which  circumstantial  and  other  evidence 
of  adultery  is  to  be  weighed.  I had  the  honor  to  call  the  attention 
of  the  court  just  now  to  an  authority  upon  this  subject.  It  is  not 
worth  while  to  trouble  you  with  it,  but  I pray  his  honor  to  take 
notice,  that  throughout,  the  burden  is  upon  the  libellant  to  prove  his 
case  clearly  and  undoubtedly;  that  every  invisible  fact  and  circum- 
stance goes  for  nothing  at  all;  and  that  throughout,  if  everything 
that  has  been  established  by  credible  evidence  is  fairly  reconcilable 
with  the  innocence  of  the  party,  in  reference  to  the  great  ultimate 
charge,  there  is  not  a tittle  of  proof  in  the  case. 

17.  No  PROOF  OF  defendant’s  GUILT. 

With  this  we  start.  It  is  the  crime  of  adultery,  Mr.  Foreman. 
It  is  an  intentional  and  deliberate  surrender  of  the  person  unlaw- 
fully to  another.  No  surprise  at  the  window,  no  sudden  placing 
of  the  hand  within  the  bosom,  instantly  and  by  a flood  of  tears  re- 
pelled, is  adultery.  There  must  be  some  intentional,  intelligent, 
voluntary  and  consummated  surrender  of  the  body;  and  this  estab- 
lished by  evidence  clear  and  undoubted,  or  there  is  no  case.  No 
such  case  is  established  or  begun  to  be  established  before  you.  It 
would  express  my  opinion,  gentlemen — and  if  I should  allow  my- 
self, what  I would  prefer  to  do,  to  make  a very  short  address  upon 
this  evidence,  I should  leave  it  upon  that — it  would  express  my 
opinion  exactly  of  the  state  of  the  proof,  if  I should  say  that,  un- 
til you  come  down  to  the  alleged  confession  of  John  H.  Coburn, 
there  is  not  a particle  of  proof,  not  one  fact,  not  one  declaration, 
that  tends  in  the  least  degree  to  prove  the  guilt  of  the  defendant; 
and  of  John  H.  Coburn’s  testimony  I should  say,  it  was  the  most 
barbarous,  beastly,  incredible,  impossible  perjury  that  was  ever  at- 
tempted to  be  passed  upon  a jury.  And  if  my  object,  as  I said  be- 
fore, were  merely  a verdict  of  acquittal  upon  this  charge,  I would 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


267 


leave  it  there,  or  rather  I would  proceed  at  once  to  the  discussion 
of  the  testimony  upon  that  fact.  But  the  importance  of  the  cause 
and  the  novelty  of  the  trial  make  it  necessary  to  go  a little  further; 
and  therefore  I beg  leave  to  submit  my  commentary  upon  the  whole 
proof  under  this  arraignment,  and  I commend  it  to  your  attention, 
as  it  will  enable  you  to  see  where  I am  in  the  progress  of  the  dis- 
cussion; and  I will  enable  you  to  give  me  credit  for  believing  that 
if  I do  not  at  once  place,  or  in  one  moment,  reply  to  a piece  of 
evidence  that  lies  in  your  own  mind,  according  to  the  arrangement 
I have  proposed,  I shall  do  it  in  another. 

I have,  therefore,  to  submit  to  you  that  every  particle  of  credible 
evidence  in  this  case,  until  you  come  down  to  the  testimony  of 
John  H.  Coburn  and  the  alleged  confession  of  the  25th  of  Febru- 
ary, is  perfectly  consistent  with  the  innocence  of  Helen  Dalton; 
and  I shall  respectfully  submit  that  if  it  rested  there,  on  the  whole 
case  as  it  existed  down  to  that  evening,  you  would  not  leave  your 
seats  to  find  a verdict  for  the  defendant.  I shall  then  have  the 
honor  to  submit  to  you  that  Mr.  Coburn’s  evidence  is  not  entitled 
to  a moment’s  belief.  I want  you,  gentlemen,  first  to  try  all  that 
evidence  yourself,  and  after  you  and  I have  conferred  a little  upon 
it,  I shall  respectfully  once  more  ask  you  to  appreciate  the  great 
fact,  that  upon  every  single  word  of  it,  every  fact  and  circumstance, 
Mr.  Dalton  himself  pronounced  his  own  judgment,  and  declared 
that  it  did  not  convict  her  of  guilt. 

18.  No  PROOF  OF  PROXIMATE  ACTS  OF  ADULTERY. 

In  the  first  place,  let  us  look  at  it  for  ourselves.  It  is  usual  in 
cases  of  alleged  adultery  for  the  libellant  or  the  commonwealth,  or 
whoever  has  the  burden  of  proof,  to  begin  by  what  is  called  posi- 
tive proof  of  what  are  called  proximate  acts;  that  is  to  say,  direct 
positive  evidence  of  certain  acts  committed  by  which  a party  ap- 
proximates to  a surrender,  evidencing  an  immediate  commission  of 
the  crime.  Direct  evidence  of  the  commission  of  adultery  is  of 
course  very  rare,  and  is  never  demanded.  Positive  evidence  of 
these  proximate  acts,  such  I mean,  of  course,  as  the  parties  being 
found  very  near  each  other  and  apparently  surprised,  rising  hastily, 
dress  discomposed,  one  running  one  way  and  another  another,  con- 
fusion, hesitancy,  embarrassment — positive  evidence  of  that  kind 
of  proximate  acts  is  ordinarily  the  evidence  by  which  adultery  is 
established  in  a court  of  law.  Accordingly,  on  a late  occasion,  in 
the  immediate  neighborhood,  of  which  everybody,  except  perhaps 


268 


SPEECH  OF  RUFUS  CHOATE 


my  brother  Dana,  may  have  heard  something,  that  was  the  admitted 
line  of  proof — positive  proof  of  alleged  proximate  acts. 

The  first  remark  that  I have  to  make  here  is,  that  there  is  not 
the  first  particle  of  evidence  of  any  proximate  act. 

Here  Mr,  Choate  carefully  analyzed  the  testimony  to  show  that  no  proxi«^ 
mate  acts  of  adultery  had  been  shown.  He  then  continued ; 

19.  Rules  as  to  weighing  circumstantial  evidence. 

The  burden  being  then  upon  the  libellant  to  establish  beyond  a 
reasonable  doubt  the  fact  of  the  adultery,  and  the  libellant  failing 
altogether  to  produce  the  ordinary  evidence  of  a positive  character 
of  proximate  acts,  we  pass  on — still,  as  you  understand,  gentlemen, 
confining  ourselves  entirely  to  the  state  of  the  proof,  before  we  ar- 
rive at  the  alleged  confessions — we  pass  on  to  see  what  is  the  nature 
of  the  proof  relied  upon  by  the  libellant.  And  you  see  that  it  is 
circumstantial  evidence  only  of  adultery.  They  rely  wholly  upon 
circumstantial  evidence  to  prove  the  alleged  fact  of  adultery.  I 
speak  of  this  intermediate  and  earlier  period,  let  me  say,  in  order 
that  I may  be  perfectly  appreciated  by  the  jury,  before  and  inde- 
pendent of  the  alleged  offense  sworn  to  by  the  Coburns,  and  I re- 
mind you  that  it  is  no  more,  at  the  best,  than  circumstantial  evi- 
dence of  adultery.  I need  not  pause  to  remind  you  how  much 
caution,  how  much  candor,  and  how  much  intelligence  are  requi- 
site in  appreciating  circumstantial  evidence  in  any  case.  That 
kind  of  evidence  may  clearly  prove  guilt.  That  many  times,  how- 
ever, it  has  also  shed  innocent  blood,  and  many  times  it  has  stained 
a fair  name,  I need  not  pause  for  a moment  to  illustrate  or  remind 
you.  Instead  of  doing  that,  I think  I shall  be  better  occupied, 
under  the  direction  of  his  honor,  in  reminding  you  of  the  two 
great  rules  by  which  circumstantial  evidence  is  to  be  weighed,  ap- 
preciated and  applied  by  the  jury.  Those  rules,  gentlemen,  are 
these  : 

In  the  first  place,  that  the  jury  shall  be  satisfied,  beyond  a 
reasonable  doubt,  that  the  circumstances  relied  upon  to  prove  the 
fact  really  existed;  and  then,  when  these  circumstances  are  clearly 
and  certainly  established. 

In  the  second  place,  it  is  a rule  of  equal,  or  even  more  impor- 
tance in  this  case,  that  the  jury  shall  be  satisfied  that  they  conduct, 
as  a necessary  result  and  conclusion,  to  the  inference  of  guilt.  It 
is  a rule  that  may  be  called  a golden  rule  in  the  examination  and 
application  of  this  kind  of  evidence  which  we  call  circumstantial, 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


269 


that  should  it  so  turn  out  that  every  fact  and  circumstance  alleged 
and  proved  to  exist  is  consistent  on  the  one  hand  with  the  hypoth- 
esis of  guilt,  and  on  the  other  hand  consistent,  reasonably  and 
fairly,  with  the  hypothesis  of  innocence,  then  those  circumstances 
prove  nothing  at  all.  Unless  they  go  so  far  as  to  establish  as  a 
necessary  conclusion  this  guilt  which  they  are  offered  with  a view 
to  establish,  they  are  utterly  worthless  and  ineffectual  for  the  in- 
vestigation of  truth.  I had  the  honor  to  read  to  the  court  this 
morning,  and  possibly  in  your  hearing,  an  authority  in  which  that 
familiar  and  elementary  doctrine  was  laid  down,  a doctrine  every 
day  applied,  everywhere  recognized  as  primary  in  the  appreciation 
of  this  kind  of  evidence.  It  is  not  enough  that  the  circumstances 
relied  upon  are  plainly  and  certainly  proved.  It  is  not  enough  to 
show  that  they  are  consistent  with  the  hypothesis  of  guilt.  They 
must  also  render  the  hypothesis  of  innocence  inadmissible  and  im- 
possible, unreasonable  and  absurd,  or  they  have  proved  nothing 
at  all. 

20.  The  circumstance  relied  on  by  plaintiff. 

I might  illustrate  this  by  reference  to  cases,  and  by  reference  to 
the  practice  and  experience  of  courts  of  law.  But  there  is  no  need 
at  this  moment  to  detain  you  upon  this  subject,  and  I pass  at  once 
to  the  examination  of  the  circumstances  relied  upon  by  the  counsel 
for  the  libellant  to  prove  the  charge  of  adultery.  I think  I may 
very  well  put  first,  as  the  foremost  upon  which  they  here  insist,  as  the 
capital  fact  and  circumstance  upon  which  they  mean  to  rely,  that 
Helen  Dalton,  having  been  conscious  of  the  guilt  of  adultery,  prac- 
ticed, by  the  aid,  assistance  and  advice  of  her  mother,  the  crime  of 
intentional  abortion  by  the  agency  of  Calkins’  instrument,  to  con- 
ceal that  guilt.  That,  I respectfully  submit,  is  the  fact,  and  the 
great  fact  that  the  libellant  insists  upon  in  this  case.  That  is  the 
circumstance  I have  had  the  honor  already  to  submit  to  you,  by 
which  they  at  last  determined  the  yet  undoubting  mind  and  heart 
of  Dalton.  That  was  the  capital  suggestion  by  which  they  at  last 
approached  him,  and  persuaded  him  to  abandon  his  wife  and  insti- 
tute this  libel.  That  circumstance  is  also  the  first  and  main  one 
through  which,  from  the  first  three  days  of  this  trial,  they  appeared 
to  gain  the  ear  of  the  public  and  the  press,  and  by  which  they 
made  an  impression  upon  you. 

I have  the  honor  to  insist  upon  the  evidence,  by  leave  of  the 
court,  that  a more  enormous  and  manifest  falsehood,  in  the  color 


270 


SPEECH  OF  RUFUS  CHOATE 


of  circumstantial  proof,  was  never  laid  before  a jury.  What  is  this 
circumstance,  exactly  as  the  libellant,  by  his  testimony,  brings  it 
before  you?  We  learn  from  the  testimony  that  Helen  Dalton,  hav- 
ing been  threatened  with  a natural  miscarriage  in  the  manner  indi- 
cated in  the  evidence  upon  the  stand  by  her  mother,  and  corrobo 
rated  more  particularly  by  other  testimony;  having  been  threatened 
with  a natural  miscarriage  once,  twice,  and  a third  time,  was  as- 
sisted by  her  mother  by  some  of  those  feeble  and  accustomed  old 
woman’s  remedies,  warm  water  applied  to  the  feet — composition 
powder  to  be  taken.  It  is  not  the  charge,  and  I understand  that 
the  learned  counsel  will  not  venture  to  take  the  ground,  if  it  be 
true  in  point  of  fact,  as  upon  the  evidence  has  been  shown  to  you, 
that  she  was  merely  threatened  with  a natural  miscarriage,  and  in 
order  to  break  its  force,  alleviate  its  pangs,  and,  if  it  was  inevitable, 
abridge  its  duration,  her  mother  applied  the  remedies;  but  the 
charge  is  this  exactly:  that,  being  perfectly  well,  liable  to  bear  a 
child,  whose  countenance  might  tell  the  story  of  guilt,  fearing  the 
revelation  of  a natural  birth,  under  the  advice  of  her  mother,  at- 
tended by  her  mother  and  counselled  by  her  father,  she  was  con- 
ducted at  first  to  an  irregular  operator  who  performed  an  artificial 
operation  for  abortion.  That  is  the  ground  taken  by  the  other 
side;  and  it  is  between  these  two  theories,  upon  this  part  of  the 
case,  that  I have  the  honor  of  comparing  the  weight  of  the  evi- 
dence and  invoking  the  intelligence  of  the  jury.  I ask,  gentlemen, 
which  theory  it  is  that  commends  itself  to  you  ? Is  it  the  one  pro- 
pounded by  the  respondent,  proved  by  her  mother,  father,  Mrs. 
Richardson,  Margaret  Ware,  Mrs.  Emerson,  Dr.  Calkins,  and  by 
everybody,  that  it  was  a natural  miscarriage,  three  times  developing 
the  threat  of  its  approach,  three  times  vainly  sought  to  be  allevi- 
ated by  those  trivial  remedies  of  the  mother,  three  times  feared, 
three  times  provided  against,  and  at  last,  happening  under  the 
anguish  of  the  communication  made  to  her  by  Dalton  through  Mrs. 
Richardson  ? Is  it  this,  or  is  it,  as  they  put  forward;  that  being 
perfectly  well,  pregnant,  and  about  to  be  naturally  delivered,  but 
not  knowing  who  was  the  father  of  the  child,  and  fearing  that  its 
birth  might  reveal  her  guilt,  for  the  purpose  of  concealment  she  re- 
sorted to  this  abortion  ? If  it  is  the  explanation  which  we  lay  be- 
fore you,  of  course  this  is  all  perfectly  worthless  as  circumstantial 
evidence  in  the  case.  But  if,  on  the  other  hand,  they  have  estab- 
lished their  theory,  these  are  circumstances,  I admit,  of  great 
strength;  and  I have,  therefore,  the  honor  to  repeat  that  this  is  the 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


271 


capital  fact  or  circumstance  offered  by  the  learned  counsel,  and  at- 
tempted to  be  proved  by  his  witnesses,  and  by  which  they  per- 
suaded Dalton  to  resort  to  this  libel,  by  which  they  stand  or  fall, 
upon  the  judgment  of  this  jury,  in  their  whole  case. 

21.  No  MOTIVE  TO  INDUCE  DEFENDANT  TO  DESTROY  HER 
OFFSPRING. 

( 

I pray  your  attention,  therefore,  for  a moment  somewhat  more 
carefully,  particularly  to  the  weight  of  the  evidence  upon  this  point. 
And  the  very  first  thing  to  which  your  attention  is  likely  to  be 
called,  is  the  question:  Where  was  the  motive  which  induced  Helen 
Dalton,  or  the  mother  of  Helen  Dalton,  to  commit  this  crime  of 
abortion  ? Where  was  the  motive  to  stifle  the  birth  of  life  of  her 
unborn  babe  in  the  circumstances  imputed  in  the  libel  ? Where 
was  the  motive  ? My  learned  friend  is  very  well  aware  of  the  im- 
portance of  that  part  of  the  case,  and  therefore  he  made  it  sub- 
stantially the  groundwork  of  the  case,  saying  that  he  should  prove, 
by  certain  evidence  more  clearly  to  be  brought  before  you,  that 
Helen  Dalton  stated  that  she  could  not  tell  who  was  the  father  of 
her  child,  and  to  secure  herself  from  that  shame,  abortion  was  prac- 
ticed upon  her  by  the  knowledge  of  some  of  her  family  and 
through  the  instrumentality  of  a low  physician.  My  learned  brother 
put  forward  the  motive  and  took  the  issue;  but  having  gone  through 
with  the  evidence  in  this  part  of  the  case,  I ask  you  where  is  the 
particle  of  evidence,  credible  or  incredible,  that  Helen  Dalton  ever 
stated  to  any  human  being  that  she  did  not  know  who  was  the 
father  of  her  child  ? Where  is  the  witness,  Edward  Coburn,  John 
Coburn,  Mary  Hunter,  or  anybody,  who  comes  forward  here  to 
give  the  least  color  to  a charge  so  cruel  and  yet  so  decisive  as  this  ? 
If  they  told  my  learned  friend  so,  upon  consultation  with  him,  be- 
fore they  appeared  upon  the  stand,  I can  only  say  that  when  they 
came  before  this  court,  and  into  the  light  of  this  room,  they  did 
not  dare  to  repeat  it.  I can  only  say,  that  if  anybody  told  him  so 
anywhere,  when  they  came  here,  that  which  was  a mere  fiction  in 
the  beginning,  their  memory  refused  to  enable  them  to  repeat  in 
your  presence;  for  I have  the  honor  again  to  submit  to  you  that, 
from  the  first  to  the  last,  there  is  not  a scintilla  of  evidence  from 
any  witness,  even  from  the  most  disreputable  and  untrustworthy  of 
them  all,  that  Helen  Dalton  ever  breathed  a doubt  to  mortal  man 
or  woman  of  the  paternity  of  her  yet  unborn  babe.  On  the  con- 
trary, if  it  were  necessary  to  consume  your  time  upon  this  point,  I 


272 


SPEECH  OF  RUFUS  CHOATE 


might  show  you  by  Miss  Dalton  and  other  witnesses,  that  it  was 
known  to  everybody,  or  assumed  by  everybody,  that  Dalton  was 
the  father  of  the  child.  Mary  Hunter  tells  you  that  this  savin, 
about  which  she  gives  you  so  much  information,  the  leaves  of 
which  may  be  as  large  as  your  thumb-nail,  or  as  large  as  the  New 
York  Courier  6^  Enquirer,  she  don’t  know  which,  was  given  to 
bring  along  Dalton’s  child.  It  was  Dalton’s  child,  by  the  testi- 
mony of  all,  that  was  to  be  made  to  be  born  before  its  time;  and 
from  the  testimony  of  no  one,  in  view  of  the  evidence,  light  or 
dark,  is  there  a suggestion  that  she  ever  feared  in  her  life  that  it 
should  prove  otherwise.  Where  then,  I ask  you,  does  my  learned 
brother  find  a warrant  for  that  opening  which  made  such  a lodg- 
ment in  your  minds  and  in  the  minds  of  the  community  a fort- 
night ago,  when  this  case  commenced,  the  assertion  that  she  said 
she  did  not  know  who  was  the  father,  and  not  knowing  what  father’s 
face  might  be  painted  upon  its  infancy,  she  decided  to  destroy  it  ? 
I respectfully  submit,  upon  the  other  hand,  that  it  is  demonstrated 
in  the  course  of  the  evidence,  so  as  to  leave  no  doubt  upon  the 
mind  of  a human  being,  that  whatever  else  there  may  be  in  this 
case  to  regret,  and  whatever  else  there  may  be  to  investigate,  Dal- 
ton was  the  father  of  that  child;  that  it  was  known  to  him,  that  it 
was  known  to  her,  that  it  was  known  or  believed  to  be  so  by  every- 
body. And  therefore  the  foundation  of  this  most  cruel  and  yet  in- 
fluential pretense  is  struck  from  under  their  feet. 

Here  Mr  Choate  reviewed  the  evidence  to  support  his  statement,  and  to 
show  that  this  testimony  was  not  contradicted.  He  then  continued : 

Can  it  be  that  rights  like  these,  that  affections  like  these,  are  to 
be  determined  by  the  jury  against  proof  or  without  proof,  and  in 
the  face  of  a body  of  such  proof  as  that  with  which  we  confront 
it  ? On  the  other  hand,  we  have  the  honor  to  lay  before  you,  first, 
the  testimony  of  three  witnesses  swearing  to  the  matter,  directly 
and  distinctly  as  within  their  own  knowledge;  and,  secondly,  that 
of  two  experts,  who  apply  their  knowledge  of  science  to  this  sub- 
ject, and  who  declare 'that  the  knowledge  of  conception  must  have 
dated  back  as  far  as  the  last  of  September  or  the  first  of  October. 

Starting  from  that,  the  next  inquiry  in  this  case  is,  when  and 
where  did  Helen  Dalton  first  become  acquainted  with  Sumner  ? 
That  at  that  time  she  had  ever  known  such  a man  as  Sumner,  not 
a human  being  contends.  And  yet  the  time  of  that  acquaintance 
has  a very  material  bearing  upon  the  alleged  statement  that  she 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


2T3 


said  she  did  not  know  who  was  the  child’s  father;  and  in  order  to 
show  you  the  utter  groundlessness  of  that  charge,  I have  only  to 
remind  you  that  they  have  not  produced  one  scrap  of  evidence  that 
she  ever  saw  the  person  of  Sumner  in  her  life  before  the  middle  of 
October.  And  she  bore  in  her  bosom  a pregnancy  of  a month,  or 
at  least  of  two  or  three  weeks,  before  she  ever  saw  him  in  her  life. 
I contend  that  nobody’s  suspicions  have  ever  dreamed  that  there 
was  any  colorable  pretense  for  the  charge  of  an  unlawful  connec- 
tion with  Sumner  until  the  i6th  of  October,  when  certainly  she  was 
one  or  two  months  advanced  in  this  pregnancy.  There  is  no  proof 
which  they  have  been  able  to  bring  upon  that  point. 

But  I do  not  rest  it  upon  the  absence  of  evidence.  How  stands 
the  matter,  so  far  as  regards  the  direct  testimony  ? They  have  in- 
troduced two  direct  witnesses  who  certainly  are  entitled  to  credit; 
Miss  Snow,  a respectable  young  lady,  and  friend  of  Helen  Dalton, 
and  willing  to  be  her  friend  and  to  avow  herself  to  be  her  friend; 
and  Mrs.  Coburn,  her  sister,  who  would  know,  if  any  human  being 
would  know,  the  fact;  and  both  declare  that,  to  their  best  knowl- 
edge and  belief,  Helen  Dalton  never  saw  Sumner  in  her  life  up  to 
the  middle  of  October.  Miss  Snow  declares  that  all  the  knowledge 
she  has  of  their  acquaintance  begins  about  the  middle  of  October, 
when  she  was  introduced  to  him;  and  Mrs.  Coburn,  in  her  deposi- 
tion read  to  you  last  night,  makes  the  declaration  that  it  was  the 
middle  of  October  before  she  ever  saw  him.  Are  not  the  facts  un- 
doubted that  she  was  pregnant,  that  it  was  known  to  her  husband, 
known  to  her  mother  and  her  sisters  ? 

22.  Testimony  reviewed  to  show  absence  of  motive. 

And  now,  turning  again  to  my  learned  friend,  who  says  that  she 
declared  she  did  not  know  who  was  the  father  of  her  child,  I ask 
him,  as  I asked  before,  where  was  the  motive  to  stifle  his  unborn 
babe  in  the  birth  of  life,  and  to  add  this  crime  of  murder  to  all  the 
other  incidents  with  which  this  case  is  connected  ? Where  was  the 
motive  ? Do  you  think  it  probable,  Mr.  Foreman  — I pray  your  at- 
tention to  the  evidence — do  you  think  it  probable  that  this  young 
wife,  suspected  by  her  husband  and  stricken  to  her  heart  because 
her  husband  suspected;  who  knew  perfectly  well  that  she  was  inno- 
cent; who  hoped  that  it  might  live  to  be  a tie  and  pledge  to  them 
in  the  days  of  their  reunion;  who  knew  perfectly  well  that  she  car- 
ried in  her  bosom,  upon  her  infart’s  eloquent  features,  what  might 
one  day  testify  to  the  legitimacy  of  the  child,  the  honor  of  the  hus- 
18 


274 


SPEECH  OF  RUFUS  CHOATE 


band,  and  the  virtue  of  the  wife — do  you  believe  that  then  and 
there  she  would  surrender  her  body  to  this  operation,  to  this  peril, 
to  stifle  and  destroy  her  means  of  proof;  her  most  eloquent  of  ad- 
vocates, the  most  powerful  means  by  which  a mother  expecting  and 
hoping  for  progeny  could  look  forward  to  restore  the  alienated 
heart  of  a once  loving  husband,  with  whom  she  must  either  live  or 
bear  no  life  ? I turn  upon  him,  in  total  absence  of  proof  of  these 
alleged  facts,  and  I ask  what  motive  could  she  have  had  ? I ap- 
peal, to  borrow  the  language  of  the  Queen  of  France,  when,  in 
that  great  trial  which  terminated  with  the  sacrifice  of  her  life,  being 
accused  of  everything  else,  she  was  accused  of  pandering  the  vices 
of  her  son,  she  exclaimed,  and  that  shriek  went  through  France  and 
through  Europe:  “I  appeal  to  mothers,  if  it  be  possible  ! I ap- 
peal to  you  if  it  be  possible  that  this  daughter  should  be  led  out 
by  her  mother,  and  trotted  across  the  street  like  an  unclean  beast, 
for  an  operation  which  was  to  destroy  the  hopes  of  both.  I appeal 
to  you  if  it  be  possible  that  that  mother  and  grandmother  can  be 
believed  to  have  cared  so  little  about  the  operation  for  intentional 
abortion,  as  was  testified  by  one  witness,  that  she  had  performed  it 
herself  half  a dozen  times  upon  the  person  of  Mrs.  Emerson,  so 
that  she  would  do  it  as  lightly  and  unfeelingly  as  a boy  would  shake 
green  apples  from  a tree.  I appeal  to  you,  gentlemen,  if  our  hearts 
and  our  reasons  do  not  pronounce  and  denounce  the  whole  story 
as  a fabrication,  an  ingenious  falsehood,  without  a single  element 
of  grave  truth  ? 

Here  Mr.  Choate  showed  that  the  only  proof  to  the  contrary  was  that  of 
John  H.  Coburn,  Edward  O.  Coburn,  and  Mary  Hunter,  whose  testimony  he 
showed  was  conflicting  and  unworthy  of  belief.  He  then  continued  : 

Now,  what  have  we  upon  the  other  side?  I do  not  know  but 
the  trial  will  end  in  the  severance  of  this  tie;  and  in  a general  con- 
viction of  a body  of  perjury  committed  in  the  court-house  under 
your  eye,  most  hideous,  most  enormous,  most  unparalleled  in  the 
administration  of  criminal  justice.  But  if  it  is  not  to  come  to  that, 
then  I put  upon  one  side  of  this  case  of  the  charge  of  abortion  this 
great  fact:  that  we  produce  the  positive  and  direct  testimony  of 
five  witnesses — for  I include  Mr.  and  Mrs.  Emerson,  inasmuch  as 
it  is  just  as  fully  proved  that  the  operation  for  abortion  has  been 
practiced  upon  Mrs.  Emerson  for  six  times  as  upon  Helen  Dalton 
once — five  witnesses,  hitherto  respectable  in  the  eyes  of  the  com- 
munity, who  have  come  before  you  with  every  apparent  title  to 
your  confidence,  and  who  have  opposed  the  declarations  which  the 


BEtlALF  OF  HELEN  MARIA  DALTON. 


275 


other  side  have  brought  forward,  by  declarations  of  matters  of  fact 
strictly  within  their  personal  knowledge.  Three  of  them  say  that 
no  abortion  was  practiced  upon  Helen,  and  two  of  them  testified 
that  no  abortion  was  practiced  upon  Mrs.  Emerson.  Five  witnesses 
swear  directly  as  to  a matter  of  fact,  most  striking  and  painful  if 
it  ever  happened  within  their  recent  experience,  which  they  will 
remember  as  long  as  their  moral  nature  exists,  if  it  occurred  at  all; 
and  these  five  tell  you  that  the  story  is  false  and  scandalous  and 
groundless  from  beginning  to  end. 

23.  Defendant’s  proof  showing  falsity  of  the  charge 

NARRATED. 

I think  I should  hardly  be  warranted  in  an  ordinary  case  in  de- 
taining you  another  moment,  if  it  were  not  very  material,  if  it  were 
probable,  if  it  were  not  attended  with  consequences  which  I think 
will  settle  this  controversy.  If  it  were  a mere  naked  question 
whether  abortion  was  procured  or  not,  I should  leave  it  here;  but 
inasmuch  as,  if  it  were  not  done,  if  that  story  is  as  false,  every 
part  of  it,  as  any  fabrication  from  the  infernal  world,  this  whole 
case  goes  down  with  it,  I ask  you  to  pause  a moment  longer.  If 
there  was  no  abortion,  permit  me  to  say,  better  were  it  for  John 
H.  Coburn,  Edward  O.  Coburn,  and  Mary  Hunter,  if  they  from  an 
untimely  birth  had  never  seen  the  light,  than  that  they  should  come 
here  and  commit  this  great  sin,  if  they  die  without  repentance  and 
without  forgiveness.  I submit  that  it  will  follow  inevitably,  in 
every  aspect  of  this  case,  that  if  that  story  is  untrue,  there  is  not  a 
particle  of  foundation  to  rest  their  case  upon  from  the  beginning. 

I am  not  blaming  Dalton.  Do  not  understand  me  as  blaming 
Dalton  because  he  brings  forward  their  charge  of  abortion.  They 
vanquished  him  by  it.  They  made  a child  of  him  by  it.  They 
made  him  believe  that  story.  He  took  it  as  it  was  told  to  him,  and 
it  was  no  folly  for  him  to  lay  it  before  you.  It  is  they  who  fabri- 
cated it,  and  who  by  means  of  it  have  won  him  to  this  pursuit,  who 
are  deserving  of  our  censure.  Upon  that  I have  something  further 
to  say  by  and  by. 

Now  I ask  you,  first  and  foremost,  whether  you  believe  our  five 
positive  witnesses.  I would  not  in  any  ordinary  case  consume 
time  upon  it;  but  if  you  will  bear  with  me,  I think  there  is  a capital 
distinction  between  the  testimony  of  the  other  side  and  that  of 
these  five  witnesses,  who  swear  to  matters  of  fact  within  their  own 
positive  knowledge.  If  that  matron  mother  led  that  blooming  and 


276 


SPEECH  OF  RUFUS  CHOATE 


innocent  child  across  the  street  for  the  performance  of  this  opera- 
tion, she  knows  it.  If  Mr.  Gove  was  consulted  about  it,  or  coun- 
selled it  either  before  he  went  West  or  after  his  return,  he  knows  it 
perfectly.  If  this  happened  at  all,  I submit  to  you  that  Dr.  Calkins 
knows  it  perfectly.  And  if  it  was  ever  practiced  upon  the  pure, 
youthful,  matron  form  of  Mrs.  Emerson,  does  not  she  and  does  not 
her  husband  know  it  ? And  yet  they  all  declare  it  to  be  an  absolute 
falsehood  upon  the  stand.  Can  there  possibly  be  any  escape  for 
them  if  they  are  wrong  ? Is  not  here  an  absolute  certainty  that,  if 
they  are  honest  and  state  what  they  believe  to  be  true,  they  cannot 
be  mistaken  ? Allow  me  for  a moment  to  run  over  this  part  of  the 
evidence,  that  you  may  perceive  its  entire  strength;  for  I want  this 
matter  put  completely  at  rest,  to  put  at  rest  your  judgment;  and  I 
want  your  verdict  to  express  your  opinion  upon  this  point.  Let  me 
then  go  over  this  evidence  a little  more  in  detail. 

24.  Mrs.  Gove — her  character  and  testimony. 

We  call  Mrs.  Gove,  who  declares  upon  her  solemn  oath  in  your 
presence,  that  she  never  advised  an  operation,  that  she  never  ac- 
companied her  daughter  for  that  purpose,  and  that  she  never 
suspected  or  dreamed  that  it  was  ever  charged  until  a late  period 
in  the  history  of  this  case.  You  remember  her  testimony  upon  the 
stand,  and  I ask  you  whether  you  believe  her  a willful  perjurer.  I 
know  the  deep  feeling  with  which  she  testifies  in  the  case.  I know 
that  she  has  arrived  at  a time  of  life  when  the  future  is  abridged  as 
well  as  uncertnin  and  doubtful,  and  I believe  that  at  any  time  of 
life  she  would  give  her  own  for  her  child;  and  I submit  to  you,  if 
there  is  any  ground  to  say  or  any  ground  to  suspect  that  she  comes 
here  willing  to  peril  her  soul — and  she  sustains,  I believe,  a Christ- 
ian character — in  swearing  to  a falsehood.  Do  you  believe  that 
story  to  be  true  ? Grief  may  have  impaired  her  faculties  to  some 
extent.  Her  memory  may  be  occasionally  somewhat  defective. 
Some  exceptions  may  have  been  taken  as  to  her  manner  upon  the 
stand.  But  the  solemnity  and  dignity  of  that  Christian  matron  as 
a witness  here  must,  I think,  have  given  to  you  all  the  assurance 
you  could  desire  that  she  meant  to  tell  the  truth.  Is  there  any 
escape  for  her  upon  the  ground  of  forgetfulness  ? Can  it  be  that 
she  could  take  part  in  such  a transaction,  and  not  be  able  to  re- 
member it  ? or  that  she  does  so  much  of  it  in  her  own  house  that  a 
particular  case  of  that  kind  makes  no  impression  upon  her  memory? 
L oul J she  be  mixed  up  with  a domestic  agony  so  sharp  as  this — 


O:^  BEHALF  OF  HELEN  MARIA  DALTON. 


27T 


could  she  possibly  have  taken  part  in  it,  led  her  child  to  the  knife, 
and  carried  her  back  to  a premature  delivery — and  have  forgotten 
it  ? Gentlemen,  there  is  no  such  escape  for  my  learned  friend  as 
this.  There  is  the  most  dreadful  perjury,  or  she  has  told  the  truth. 

But  you  observe,  still  further,  that  there  is  no  excuse  left  upon 
the  score  of  forgetfulness,  for  another  reason.  You  cannot  have 
forgotten  with  how  much  minuteness  of  detail  she  traced  the  his- 
tory of  this  case.  She  fixed  the  period  of  the  pregnancy,  announced 
the  fact  that  she  was  three  times  threatened  with  miscarriage,  fixed 
the  number  of  weeks  as  nearly  as  the  time  may  be  fixed,  a time 
corroborated  by  the  testimony  in  the  case  of  the  final  miscarriage. 
You  will  remember  that  she  stated  with  the  utmost  precision  the 
kind  of  remedies  which  she  applied,  the  periods  she  applied  them, 
the  effects  that  followed;  that  one  attack  passed  away,  and  then, 
after  a considerable  interval,  another  came  on;  that  these  attacks 
were  subdued  under  the  influence  of  some  applications  made  by 
her  maternal  care;  and  at  last  the  third  and  decisive  attack  fol- 
lowed, hurried  to  its  inevitable  consummation  by  that  sharpest  of 
afflictions,  announced  by  Mr.  Richardson,  that  her  husband  refused 
to  meet  her  again.  I respectfully  submit,  therefore,  that  there  is 
no  room — none  in  the  world — for  escape,  upon  the  score  of  forget- 
fulness, from  the  charge  of  perjury,  if  she  has  not  told  you  the 
truth. 

25.  Mr.  Gove, — his  character  and  testimony. 

Permit  me  now  to  say  something  of  Mr.  Gove.  He  stands  be- 
fore you  convicted  of  a violation  of  truth  and  a most  deliberate 
perjury,  if  he  had  any  agency,  direct  or  indirect,  or  if  he  ever 
suspected  in  his  life  that  the  crime  of  abortion  was  committed,  un- 
til he  heard  it  in  the  anonymous  communication  of  which  he  has 
spoken.  I know  very  well  that  Mr.  Gove’s  testimony  is  liable  to 
criticism.  With  this  burden  upon  his  mind,  and  this  long  agony, 
threatened  as  he  is  with  the  lopping  off  the  lowest  and  fairest 
branch  of  the  family  tree,  I know  how  full  his  heart  is,  and  I re- 
spect him  the  more  for  it.  I know,  gentlemen,  that  he  does  not 
dismiss  it  from  his  thoughts  an  hour;  that  it  is  in  his  prayers;  that 
it  goes  with  him  to  his  bed;  that  it  attends  him  in  the  streets; 
that  it  lies  heavy  upon  his  heart  everywhere;  that  it  makes  him 
forget  the  proprieties  of  his  general  character,  in  the  presence  of 
one  of  the  jury.  I know  that  it  haunts  his  dreams — dreams,  gentle- 
men; he  has  no  sleep  but  the  sleep  which  anodynes  supply  him; 


278 


SPEECH  OF  RUFUS  CHOATE 


and  I know  very  well,  therefore,  that  in  regard  to  the  trifling  matters 
of  detail,  or  concerning  proprieties  of  conduct,  Mr.  Gove  has  not 
appeared  advantageously.  The  father  has  been  too  strong  for  the 
citizen,  in  certain  respects  and  to  a certain  extent;  and  I need  not 
appeal  to  you,  gentlemen,  who  may  expect  or  fear  also  yourselves 
to  be  judged,  to  say  whether  or  not  he  would  commit  a willful  per- 
jury upon  a matter  of  fact  like  this.  Is  not  that  a wholly  delusive 
theory,  in  everybody’s  judgment  ? May  he  not  be  imprudent  and 
talkative,  wish  to  hear  whether  one  man  or  another  man  is  to  pass 
upon  this  trial  which  affects  more  than  his  life,  because  it  affects 
what  is  treasured  in  his  heart  ? May  he  not  want  to  know  about 
what  this  witness  says,  or  what  that  witness  says  ? May  he  not  talk 
imprudently  or  even  foolishly,  but  yet,  past  the  middle  of  life,  a 
man  whose  gray  hairs  and  bald  head  give  evidence  of  an  approach 
to  that  time  when  we  should  be  walking,  thoughtful  and  silent, 
upon  the  solemn  shore  of  that  vast  ocean  upon  whose  waves  we  are 
to  sail  so  soon,  would  he  not  put  truth  and  good  words  on  board  ? 
Is  that  the  correct  inference  that  a man  like  Mr.  Gove — grown  up 
before  you,  a boy  from  the  country,  of  respectable  and  pious 
parentage,  one  of  the  disciples  and  children  of  John  and  Charles 
Wesley,  who  sings  their  hymns,  utters  their  prayers  daily  and 
nightly — comes  to  swear  deliberately  and  willfully  to  a falsehood  ? 
God  forbid,  gentlemen,  that  we  should  thus  judge  one  another  in 
judgment!  I do  not  appeal  to  your  charity,  to  your  hearts,  but  I 
put  it  to  your  knowledge  of  life — and  you  may  be  parents — whether 
you  cannot  appreciate  perfectly  how  the  father  should  be  talkative, 
and  forward,  and  imprudent ; willing  to  forget,  or  at  any  rate  for- 
getful of  smaller  and  minute  details,  and  yet  shrink  back  as  if  hell 
opened  under  his  feet  from  the  utterance  of  a lie  ? 

Here  Mr.  Choate  reviewed  the  evidence  to  show  the  falsity  of  the  crime 
charged  against  the  defendant  and  against  her  father,  and  continued: 


26.  Dr.  Calkins. — Inference  from  his  refusals  to  answer. 

There  is  another  single  witness  who,  if  anybody  upon  the  face 
of  the  earth,  must  have  known  whether  this  charge  was  true  or 
false,  and  that  is  Dr.  Calkins.  We  who  did  not  know  who  he  was, 
or  care  what  he  was,  produced  him  here ; because  we  knew  that 
whatever  he  was,  he  would  not  dare  to  stand  before  the  face  of 
that  mother  and  child,  and  tell  you  that  that  mother  ever  practiced 
abortion  or  assisted  in  it.  We  called  him  and  placed  him  before 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


279 


you,  and  you  know  that,  unless  he  adds  to  the  other  black  list  the 
guilt  of  perjury,  the  charge  is  groundless.  As  Dr.  Calkins  is  a 
stranger,  he  was  entitled  to  be  heard  before  you,  and  I submit  to 
you  that  he  is  entitled  to  be  believed  upon  his  oath,  upon  every 
principle  of  law  and  common  sense,  until  it  is  shown  why  he  should 
not  be  believed.  Every  witness  is  entitled  to  be  believed  upon  his 
oath  with  regard  to  a matter  within  his  knowledge,  unless  we  have 
some  certain  ground  upon  which  to  discredit  him.  I ask  you,  if 
there  is  one  scintilla  of  evidence  that  should  warrant  you  upon 
your  oaths  in  saying  that  Dr.  Calkins  has  sworn  to  a word  of  un- 
truth ? What  is  there  against  Dr.  Calkins?  This  only.  My  learned 
brother  addressed  certain  inquiries  to  ascertain  whether  he  had  not 
at  some  other  period  procured  an  irregular  abortion.  Dr.  Calkins 
took  his  constitutional  privilege  and  declined  to  answer.  What  is 
the  inference  ? It  is  that  he  so  respects  his  oath,  that  he  dares 
not  answer  untruly;  and  that  he  could  not  answer  untruly,  without 
criminating  himself,  he  took  his  constitutional  privilege  and  de- 
clined to  answer.  What  was  to  hinder  him  from  giving  my  brother 
information  about  that  bamboo-bottomed  chair  ? What  was  to 
hinder  him  from  denying  everything,  but  the  fear  of  Almighty 
God  on  the  oath  he  had  taken  ? And  why  does  he  stand  here  and 
swear  that  he  did  not  practice  an  abortion  upon  Helen,  but  because 
he  can  truly  do  it  ? I submit  to  you,  that  the  very  fact  that  he 
made  this  distinction,  that  he  claimed  this  constitutional  privilege 
in  the  one  instance,  upon  which  his  honor  instantly  extended  to 
him  its  protection,  and  answered  freely  in  the  other  instance, 
showed  that  he  could  negative  one  inquiry  as  a man  of  conscience 
under  oath,  and  respected  his  oath  too  much  to  negative  the  other. 
Although  I disapprove  of  what  we  may  conjecture  his  practice  to 
have  been,  I thank  God  that  herein  we  may  see  another  illustration 
that  a man  may  do  one  wrong  and  commit  one  irregular  act,  or  one 
breach  of  the  law,  and  yet  that  he  is  not  necessarily  a devil  incar- 
nate, a perjurer,  or  an  adulterer. 

I go  further  for  Dr.  Calkins  and  say  this:  Disapproving  alto- 
gether of  his  bamboo-bottomed  chair,  unless  it  is  an  easier  one  than 
I have  been  accustomed  to,  I have  this  to  say  for  him,  that  there  is 
not  a scrap  of  evidence  in  here  that  he  has  taken  an  infant’s  life, 
or  endangered  a human  mother — not  one.  In  coming  before  you, 
I know  nothing  of  reputation,  and  you  know  nothing  of  reputation; 
we  know  nothing  but  the  evidence  of  the  facts,  as  they  have  been 
by  law  laid  regularly  before  you. 


280 


SPEECH  OF  RUFUS  CHOATE 


27.  Defendant’s  evidence  strongly  corroborated. 

Three  witnesses,  then,  the  only  ones  who  have  spoken  upon  the 
subject,  declare  this  charge  of  abortion  against  Helen  Dalton  to  be 
false.  Are  they  not  corroborated  ? 

Here  Mr.  Choate  stated  the  corroborating  testimony,  and  continued  ; 

I should  be  glad  to  know,  also,  if  there  is  any  corroboration  of 
the  assertion  that  here  was  an  intentional  abortion,  and  not  the 
natural  progression  of  a miscarriage.  I should  like  to  know  why 
we  have  not  further  evidence  about  it  from  this  family.  How 
comes  it  to  pass  that  this  young  woman,  passing  to  Pleasant  street 
and  going  to  Dr.  Calkins,  no  human  being  in  or  about  the  house 
ever  heard  or  dreamed  of  it  ? Mrs.  Richardson  did  not  know  it; 
and  how  comes  it  to  pass  that  Mrs.  Emerson,  who  spent  that  verv 
Friday  there,  upon  the  evidence  of  the  mother  and  daughter,  who 
heard  her  mother  say  that  she  feared  a miscarriage — how  comes  it 
to  pass  that  she  knows  nothing  at  all  about  it  ? It  negatives  it.  If 
Mrs.  Coburn  is  not  willfully  perjured,  and  that  will  hardly  be  con- 
tended here,  you  have  this  striking  fact.  The  testimony  of  all  these 
parties  refers  to  the  successive  attacks,  and  to  the  fact  that  the 
mother  feared  a miscarriage;  it  shows  that  she  called  upon  Helen 
to  lie  down  and  keep  still  in  order  to  prevent  it;  she  kept  her  still 
and  recumbent,  and  in  two  cases  it  all  passed  away;  she  adminis- 
tered the  harmless  foot-bath  and  composition  powder,  to  diminish 
its  pangs  if  it  should  not  pass  away.  I think,  too,  there  is  corro- 
boration in  the  testimony  of  Dr.  Clark;  and  in  this  whole  case,  if 
her  story  is  corroborated  anywhere,  I think  you  will  find  that  cor- 
roboration here,  that  it  is  an  ordinary  case  of  natural  miscarriage, 
the  result,  it  may  be,  of  grief  or  care.  Dr.  Storer  and  Dr.  Jackson 
have  testified  that  it  belongs  to  this  great  trial  of  woman,  extraor- 
dinary and  mysterious,  this  bearing  of  children  in  pain;  it  is  a part 
of  the  law  that  not  only  physical  disease,  accident,  physical  calam- 
ity, but  the  labor  of  the  heart,  sorrow  and  anguish,  fear  and  doubt, 
and  mental  pain,  may  produce  this  effect — it  is  the  ordinary  his- 
tory. These  remedies  rather  mark  the  purpose  of  the  mother  to 
soothe  her  nerves  for  the  purpose  either  of  securing  her  from  mis- 
carriage, or  conducing  to  her  comfort  in  that  untoward  event. 

Here  Mr.  Choate  reviewed  more  corroborative  testimony.  He  then  con- 
tinued : 

I intend,  if  my  feelings  will  allow  me,  to  bring  this  whole  series 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


281 


of  correspondence,  by  and  by,  in  its  order  before  the  jury,  in 
demonstration  of  the  merits  in  this  case.  It  will  be  useless  to  turn 
to  that  correspondence  now.  Suffice  it  for  the  present  to  say  this: 
What  becomes  of  this  theory  of  abortion  upon  the  other  side  ? 
The  story  is  that,  being  well  enough,  feeling  herself  pregnant,  and 
not  knowing  who  was  the  father  of  the  child,  she  decided  to  submit 
to  this  operation,  and  put  it  to  death.  And  upon  this  view  of  the 
case,  this  whole  operation  should  be  conducted  secretly  and  with- 
out the  knowledge  of  her  husband;  whereas  we  see  by  his  letters, 
as  I will  show  you  more  completely  and  regularly  by  and  by,  she 
apprised  him  from  attack  to  attack,  exactly  or  substantially  what 
was  the  matter,  exactly  or  substantially  what  they  all  feared,  exact- 
ly or  substantially  what  her  mother  was  giving  in  order  to  alleviate 
her  pains  if  the  miscarriage  was  to  happen,  and  after  all,  she  con- 
gratulates herself,  congratulates  Dalton,  that  she  will  give  him  a 
child  at  last,  and  moots  the  little  playful  conjugal  question,  “ Shall 
it  be  a boy  or  a girl  ? ” I will  not  trust  myself  now  to  read  from 
her  letter,  but  the  result  is  an  ample  demonstration  that  her  father, 
mother,  sisters,  all  knew  of  it. 

Here  Mr.  Choate  stated  other  corroborating  testimony,  and  continued  : 

28.  The  testimony  of  the  parties  contrasted. 

I now  put  it  to  you,  as  I said  before,  that  if  our  confidence  in 
human  testimony  is  not  to  be  abandoned,  that  apparently  just, 
pure,  comely,  intelligent  and  still  young  wife,  swore  to  the  truth 
when  she  said  that  she  never  had  abortion  practiced  upon  her  by 
instruments,  or  by  purpose,  in  her  lifetime;  that  she  had  suffered 
one  certainly  natural  miscarriage,  and  possibly  another,  may  be 
true;  but  the  whole  story  as  it  was  told  here,  in  every  part  and 
parcel,  in  substance  and  in  color,  was  wholly  false.  We  must  be- 
lieve that  somebody  tells  the  truth,  and  we  must  believe  that  one  or 
another  swears  falsely.  I do  not  think  it  a very  wise  position  to 
maintain  that  a witness  upon  one  side  swears  intentionally  to  a 
falsehood.  It  is  a hard  charge  to  bring— a dreadful  crime  to  im- 
pute. Better  is  it  to  adopt  almost  any  supposition,  to  solve  the 
case,  than  that  supposition.  But  we  are  here  in  this  painful  and 
remarkable  position — somebody  has  perjured  himself  or  herself  be- 
fore God  Almighty.  That  we  know.  We  have  only  by  our  best 
lights  to  say  who,  the  one  or  the  other,  has  done  it.  You  are  not, 
therefore,  brought  at  all  to  the  painful  dilemma  of  being  obliged  to 


282 


SPEECH  OF  RUFUS  CHOATE 


take  a certain  theory  of  a case,  or  to  say  that  an  individual  has 
sworn  untruly.  Edward  O.  Coburn  and  John  H.  Coburn  have 
perjured  themselves,  or  five  respectable  witnesses  have  perjured 
themselves;  and  I put  it  to  you,  upon  this  solemn  responsibility  of 
your  oaths,  to  declare  whether  you  do  not  believe  Mrs.  Emerson 
and  her  husband,  and  these  other  witnesses. 

Here  Mr.  Choate  referred  to  the  vindictive  cross-examination  of  Mr.  Emer- 
son, showing  that  it  was  unwarranted,  and  that  the  witness  had  no  other  motive 
than  to  tell  the  truth. 

29.  Evidence  of  flirtation  no  proof  of  crime. 

What  do  they  go  to  next  ? It  is  said — and  this  brings  me  to  an 
interesting  and  very  important  part  of  the  case — that  there  was  an 
intimacy  between  Helen  and  Sumner  : walks,  drives,  rings  ex- 
changed, a book  given,  an  intimacy  of  some  weeks,  a light,  frivol- 
ous, objectionable  intimacy,  one  which,  as  long  as  she  is  a living 
woman,  is  to  be  the  sorrow  and  repentance  of  her  life;  and  so  there 
was.  They  will  say,  as  Edward  O.  Coburn  expresses  it  to  Mr. 
Matthews  (that  was  the  witness,  I think),  that  there  was  a flirta- 
tion " between  Mr.  Sumner  and  Mrs.  Dalton.  I answer,  gentlemen, 
yes,  there  was;  and  I answer  also,  exactly  in  the  words  of  Edward 
O.  Coburn  and  Mr.  Matthews,  in  the  same  conversation,  that  it  was 
only  a flirtation — that  it  went  no  farther  than  a flirtation — that  it 
might  have  gone  farther,  but  was  stopped.  I answer  thus  this  great 
piece  of  circumstantial  evidence  on  which  they  rely,  therefore,  in 
the  words  of  their  witness,  that  it  was  a flirtation  only,  and  there 
it  stops. 

I answer  in  my  own  language  also,  in  the  next  place,  gentlemen, 
which  I greatly  prefer,  that  this  intimacy,  which  since  the  days  of 
Joseph  Addison,  has  been  called  a flirtation — a vulgar,  coarse  word, 
but  one  that  best  expresses  the  idea — this  series  of  conduct,  how- 
ever, which  we  call  flirtation,  as  circumstantial  evidence  to  prove 
the  fact  of  adultery,  is  wholly  worthless.  And  this  is  a point  on 
which  I hope,  gentlemen,  at  some  little  length,  with  some  care — not 
unmindful  of  my  duties  as  a parent,  a citizen — to  lay  before  you  my 
views  also  as  a lawyer,  and  in  a court.  I repeat,  and  I submit  to 
your  honor’s  direction,  and  upon  the  authorities,  that  this  kind  of 
intimacy  that  is  characterized,  as  Mr.  Coburn  characterizes  it  also 
between  the  parties,  as  circumstantial  evidence  of  the  crime  of 
adultery,  is  wholly  worthless;  and  for  this  decisive  reason — founded 
upon  the  nature  of  circumstantial  evidence — that  it  may  perfectly 


ON  BEHAL7  OF  HELEN  MARIA  DALTON.  283 

/ 

well  consist  with  innocence  of  that  great  crime.  With  propriety, 
with  decorum,  with  a proper  respect  and  regard  to  reputation,  I 
agree  it  cannot  consist,  and  does  not  consist;  but  with  innocence 
of  the  least  degree  of  the  crime  of  adultery,  I submit  that,  as  cir- 
cumstantial evidence,  it  is  absolutely  worthless,  and  upon  the  broad 
ground  that  it  may  perfectly  well  exist  and  be  committed,  and  yet 
no  crime  of  adultery  shall  have  been  committed. 

I have  to  ask  your  attention,  gentlemen,  a little  more  partic- 
ularly to  the  exhibition  of  this  proposition  of  evidence  under  the 
rules  of  law,  and  then  to  a brief  examination  of  this  case;  and  I 
submit  what  I have  to  say  here  under  three  views.  But,  notwith- 
standing my  entire  concurrence  with  the  counsel  on  the  other  side, 
and  with  the  father  and  with  the  child  in  regard  to  the  indecorous, 
the  light,  the  frivolous  character  of  this  kind  of  conduct,  or  any- 
thing characterized  as  flirtation,  I submit  to  you,  on  the  whole 
course  of  this  evidence,  it  is  perfectly  clear  that  Helen  Dalton  never 
came  to  love  Sumner  with  that  engrossing,  impulsive  and  absorbing 
love  that  endangers  virtue  and  conquers  the  instincts  of  shame.  I 
shall  submit  it  to  you  on  the  consideration  of  the  evidence  appli- 
cable to  the  case.  I shall  submit  to  you,  further,  that  it  is  perfectly 
clear,  that  the  very  moment  she  discovered  that  in  his  case  his 
warmer  feelings  were  carrying  him  beyond  the  line  of  propriety, 
and  threatening  a solicitation  of  personal  guilt,  she  started  in  a 
moment  from  his  advances.  And  I shall  submit,  thirdly  and  lastly, 
that  this  Mr.  Dalton  himself,  with  that  knowledge  of  every  single  • 
fact  and  circumstance  that  made  up  that  entire  series  of  intimacies 
between  Sumner  and  his  wife,  came  deliberately  and  intelligently 
to  the  judgment  that  she  was  wholly  innocent  of  the  crime  for 
which  she  is  arraigned  here  to-day. 

30.  Observations  on  evils  of  flirtation. 

Under  these  three  views  I beg  leave  to  submit  to  you  some 
thoughts  on  this  part  of  the  case.  Now  I had  the  honor  to  say — 
and  I shall  in  a moment  refer  to  the  authority  that  warrants  what  I 
insist  upon  in  that  behalf — that  this  matter  of  intimacy  which  is 
characterized  by  this  name,  as  a circumstantial  evidence  of  the 
crime  of  adultery,  is  not  entitled  to  the  least  consideration.  I have 
the  honor  to  submit  to  you  that  there  is  no  fact  in  all  our  social 
life  better  established  than  this:  that  a young  married  woman  may 
admit  that  kind  of  intimacy  and  accept  a certain  degree  of  pleasure 
from  it,  and  yet  at  heart  shall  never  be  touched  for  an  instant  by 


284 


SPEECH  OF  RUFUS  CHOATE 


the  sentiment  of  a dangerous  love,  and  start  back  when  the  propo- 
sition of  crime  is  intelligibly  made  to  hei , as  if  hell  was  opening 
under  her  feet.  I submit  as  the  result  of  all  our  observation  of 
life  and  of  books — our  Edgeworths,  our  Walter  Scotts — all  that  we 
have  observed  everywhere,  proceeds  upon  this  distinction  and  rea- 
sons upon  it — every  observer  puts  the  flirt  in  one  class  and  the 
adulterer  in  another,  and  everybody  understands  that  they  belong 
to  a totally  distinct  species  of  characters,  that  a totally  distinct 
moral  and  censorial  treatment  of  them  applies  to  them  everywhere. 
We  ridicule  and  satirize  her  whom  we  call  vain,  light,  coquettish; 
from  the  adultress  we  turn  away  with  aversion  and  tears.  We 
satirize  one  as  foolish,  and  turn  from  the  other  as  wicked.  We 
hold  up  one  as  a warning  to  herself  for  her  own  correction;  of  the 
other  we  say:  “O  no,  we  never  mention  her.”  One  is  weak,  the 
other  is  wicked;  one  has  a right,  I submit  to  you,  gentlemen,  to  the 
benefit  of  the  exhortation  of  parents,  the  protection  of  law,  the 
protection  of  public  opinion,  the  care  of  a husband;  from  the  other, 
duty,  public  opinion,  religion  itself  commands  us  to  turn  away  and 
to  tear  her  from  the  heart,  although  its  fibres  part  and  its  blood 
follows  in  the  effort.  Is  it  not  a fact,  gentlemen,  not  very  pleasant, 
not  very  creditable,  but  perfectly  well  known  to  us  all  through  our 
observation  of  life,  that  many  a woman,  married  woman,  may  hover 
and  flutter  for  half  a lifetime  in  this  region  of  vanity,  flattery  and 
coquetry,  and  yet  never  dream  of  taking  the  dark  descent  below  ? 
Is  it  not  a fact  as  well  established  as  any  other,  that  falls  within 
our  observation  ? How  many  of  them  will  flutter  their  plumage 
and  incline  their  ear  to  the  music  of  flattery,  and  even  allow  it  to 
be  polluted  by  the  whisper  of  a half  suppressed  warmer  passion, 
and  yet,  when  the  romance  is  broken  by  the  solicitation  of  chastity, 
will  start  and  put  their  hands  upon  their  ears,  and  fly  as  if  a goblin 
damned  was  revealed  before  them!  I submit  to  you,  gentlemen, 
that  it  is  a fact  perfectly  established  by  all  our  observation  of  life, 
that  many  a woman  may  indulge  in  this  sentiment,  and  accept  this 
treatment  and  feel  this  pleasure,  whose  heart  is  never  touched  by 
an  illicit  love,  and  I need  not,  I think,  submit  to  you — your  knowl- 
edge of  life  is  enough  for  it,  gentlepien — that,  unless  the  heart  is 
conquered,  adultery  is  utterly  impossible. 

I return,  gentlemen,  to  maintain  my  proposition.  On  the  law,  I 
respectfully  submit  that  this  conduct  on  which  my  brother  is  by 
and  by  to  insist  as  evidence  circumstantially  proving  the  commis- 
sion of  the  last  crime,  is  worthless  as  circumstantial  evidence  to 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


285 


establish  it.  And  while  I place  myself  on  that  ground,  I know, 
gentlemen,  that  you  cannot  by  possibility  misunderstand  me  so 
much  as  to  suppose  I am  defending  this  kind  of  conduct.  I be- 
lieve I go  as  far  as  any  one  of  you  in  my  judgment  of  it ; I believe 
I know  I ought  at  least  to  go  as  far  as  you  in  my  moral  condemna- 
tion of  it.  I believe  to  adopt  in  advance  every  word  of  the  pol- 
ished and  expressive  exhortation  of  my  friend  who  will  address  you 
on  this  subject.  I agree  with  him  in  every  word  he  says  of  its  in- 
decorum and  its  levity,  its  frivolity  and  its  danger.  But  I meet 
him  as  a lawyer  and  on  the  judgment  of  this  jury,  on  the  knowl- 
edge of  life,  on  the  language  of  every  observer  of  life  and  all  we 
know  of  it,  we  know  that  many  women  have  gone  so  far  and  yet 
could  never  be  suspected  of  having  taken  that  last  final  step. 

31.  Application  of  the  law  to  the  case  at  bar. 

In  that  immediate  connection,  permit  me  to  remind  you  of  his 
honor’s  direction  of  the  course  of  law  which  should  govern  this 
case.  The  learned  judge,  in  the  case  I had  the  honor  to  refer  to 
this  morning,  had  occasion  to  comment  upon  certain  letters  that  go 
beyond  any  letters  to  be  relied  upon  in  this  case — to  comment  upon 
them  and  the  conduct  on  the  part  of  the  wife.  I am  permitted  by 
the  court  to  read  the  passage  to  you;  it  is  from  one  of  my  learned 
brother’s  ecclesiastical  judges,  and  I think  he  at  least  will  approve 
of  their  judgment.  He  was  a man,  a good  man,  v/ho  knew  life  too 
well  to  make  an  illogical,  a barbarous,  a beastly  inference  from 
conduct  that  he  disapproved;  we  knew  that  ten  thousand  fashion- 
able women  came  home  at  midnight,  one  o’clock,  two  o’clock,  from 
a party  at  which  they  supposed  themselves  to  be  honored,  to  find 
their  husbands  asleep,  aye,  and  to  be  conscious  of  a truer  pleasure 
and  deeper  love  when  they  lay  down  by  his  side,  than  they  received 
from  the  admirers  of  an  evening.  It  is  a pleasure  only  too  agree- 
able to  a light,  susceptible  and  easily  flattered  nature,  playing 
around  the  head,  but  coming  not  near  the  heart;  and,  therefore, 
gentlemen,  I feel  no  doubt  or  difficulty  that  we  should  be  able  to 
agree  in  our  judgment  of  the  act  on  its  true  quality  as  a ground  of 
inference  in  relation  to  the  grave  charge  they  have  brought  here. 
But  let  me  read  the  charge  of  the  learned  judge: 

“ The  letters  have  been  much  examined  and  commented  upon. 
I have  read  them  over  and  over  again;  but  I do  not  intend  to  fol- 
low the  counsel  in  their  comments.  They  are  written  in  an  ardent 
and  romantic  strain;  Bushe  soliciting  interviews  for  criminal  pur- 


286 


SPEECH  OF  RUFUS  CHOATE 


poses,  for  it  is  impossible  his  object,  in  thus  addressing  a married 
woman,  could  have  been  other  than  criminal,  or  that  when  a mar- 
ried woman  receives  such  letters  from  a married  man,  but  that  she 
must  know  they  were  for  licentious  purposes.  Still,  however  some 
women  will  go  a great  way  without  proceeding  to  the  last  extremity 
of  guilt;  and  the  court  must  be  satisfied,  not  only  that  there  has 
been  a surrender  of  the  mind,  but  of  the  person.” 

“Women  will  go  a great  way  without  proceeding  to  the  last  ex- 
tremity of  guilt;”  therefore,  that  she  has  gone  a little  way  or  a 
great  way  is  not  proof  of  guilt  by  the  oaths  of  this  jury  in  point  of 
law.  It  is  not  proof  of  guilt,  it  will  not  warrant  an  inference,  and 
it  is  beyond  all  manner  of  controversy,  therefore,  that  here  and 
now,  unless  they  can  go  further,  much  further  than  to  those  moral 
and  ordinary  platitudes  in  which  my  brother  will  by  and  by  in- 
dulge, about  the  impropriety  of  such  conduct  as  this — which  he 
cannot  by  possibility  paint  in  anything  like  the  strength  of  con- 
demnation in  which  it  shows  its  effects  here  to-day — an  answer  to 
all  that  is,  that  we  agree  with  him  perfectly,  but  that  is  worthless 
for  his  argument.  Unless,  therefore,  he  can  go  further  than  that, 
and  show  you  beyond  the  fact  of  intimacy  and  beyond  the  fact  oi 
flirtation,  that  there  was  this  consummated  act  of  guilt  established 
by  other  collateral  and  stronger  proof,  then  I respectfully  submit 
that  he  totally  fails  on  this  part  of  the  case,  on  the  doctrine  of  cir- 
cumstantial evidence. 

32.  The  evidence  of  flirtation  entirely  worthless. 

•Now,  gentlemen,  I have  been  laying  down  the  law,  so  to  speak, 
under  the  direction  of  the  court,  in  regard  to  this  kind  of  evi- 
dence, and  I have  only  now  to  say,  leaving  the  point  and  proceed- 
ing to  the  proof,  that  if  there  ever  was  a case  in  the  world  where  a 
young  married  woman  might  feel  a certain  degree  of  pleasure  in 
this  description  of  intercourse,  and  yet  not  commit  a great  crime, 
I think  it  would  be  this.  I ask  you  if  you  believe  it  probable  that 
a young  wife,  eighteen  years  of  age,  in  the  fifth  month  of  her  mar- 
riage and  the  second  month  of  her  pregnancy,  modest  to  an  extra- 
ordinary degree,  as  her  husband  attests,  a child  of  schools,  a child 
of  religion,  has  all  at  once  committed  this  great  crime  ? If  a writer 
of  romance  should  put  forward  such  a case,  would  you  not  say  he 
did  not  understand  his  own  foolish  business,  and  that  his  case  was 
extraordinary  and  unnatural  ? Do  you  believe  it  probable,  do  you 
believe  it  credible,  that  those  instincts  of  shame,  those  lessons  of 


ox  BEHALF  OF  HELEN  MARTA  DALTON. 


28Y 


virtue,  those  lessons  of  childhood,  those  words  of  the  holy  man  by 
whom  they  had  just  been  united  in  marriage,  those  prayers,  those 
hymns,  those  hopes,  were  all  lost  in  a moment  ? I admit,  gentle- 
men, not  very  much  accustomed  to  this  kind  of  society,  probably 
never  in  her  life  having  received  the  attention  and  address  of  a 
young  man  like  this,  she  very  naturally  felt  a certain  degree  of 
pleasure  in  it — that  kind  of  pleasure  that  applies  to  the  head,  but 
does  not  come  near  the  heart,  to  which  the  heart  which  is  wise  re- 
plies: Can  this  be  joy?  But  the  instant  the  mask  was  attempted 
to  be  or  was  thrown  off,  that  instant  she  saw  it  was  not  her  beauty, 
or  her  conversation,  or  her  manners  that  made  the  attraction,  but 
that  the  aims  were  lust,  she  resisted  and  fled.  If  then,  gentlemen, 
I am  warranted  in  my  position — as  I think  you  will  agree  with  me  ; 
as  I know  I am  upon  the  law — that  this  series  of  conduct  which  we 
call  a flirtation  is  not  circumstantial  evidence  of  guilt  at  all,  this 
case  presents  the  strongest  possible  illustration  of  that  fact. 

33.  Evidence  of  flirtation  consistent  with  a theory  of 

INNOCENCE. 

There  is  a cardinal  rule  for  the  interpretation  of  circumstantial 
evidence  which  I referred  to  yesterday,  and  which  I deem  of  such 
vital  importance  in  the  case  that  I will  read  it  to  you  again: 

“ When  the  facts  relied  upon  are  equally  capable  of  two  inter- 
pretations, one  of  which  is  consistent  with  the  defendant’s  inno- 
cence, they  will  not  be  sufficient  to  establish  guilt.” 

That  they  are  irreconcilable  with  positiveness  of  guilt,  as  well 
as  of  innocence,  gives  them  no  value  as  proof  of  the  fact.  It  will 
not,  therefore,  be  enough  for  my  learned  brother,  when  he  comes 
to  comment  upon  the  circumstantial  evidence  in  this  case,  that  the 
facts  are  always  and  throughout  consistent  with  the  supposition  of 
the  crime  of  adultery.  Unless  he  can  go  further  and  show  that  they 
necessarily  lead  to  that  conclusion,  and  that  they  are  utterly  irre- 
concilable with  the  hypothesis  of  innocence,  they  are  worth  nothing 
for  any  purpose.  We  take  with  us  also,  gentlemen,  in  this  investi- 
gation, what  I had  the  honor  to  lay  before  you  yesterday  as  a uni- 
versal maxim  of  life  and  society,  that  that  kind  of  intercourse  be- 
tween a married  woman  and  another  not  her  husband,  without  his 
knowledge,  which  we  generally  denominate  as  a flirtation,  is  utterly 
unavailing  to  prove  the  crime  of  adultery,  for  the  reason  that  it  has 
been  universally  observed,  that  it  may  be  entirely  consistent  with 


288 


SPEECH  OF  RUFUS  CHOATE 


the  innocence  of  the  accused.  I had  the  honor  in  bringing  that 
maxim  to  your  recollection  yesterday,  to  advert  to  Addison,  Edge- 
worth  and  Scott.  It  has  been  recorded  and  proved,  and,  by 
the  kindness  of  my  learned  friend,  I am  enabled  to  bring  to  your 
recollection  another  recognition  of  that  fact,  in  one  of  those 
pregnant  and  solid  judgments  of  that  great  and  stern  moralist, 
Dr.  Johnson:  “Depend  on  it,  sir,“  said  he,  “there  is  a vast 
distance  from  familiarity  to  that  great  and  last  crime — a vast 
distance.”  It  is  quite  apparent,  therefore,  that  in  order  to  make 
anything  of  this  series  of  conduct  on  the  part  of  Mrs.  Dalton,  the 
libellant  is  called  on  to  go  a great  deal  further.  And  I submit  it  is 
perfectly  clear  that  he  is  to  go  so  far  and  take  this  step;  that  taking 
her  entire  little  life  as  before  us,  from  January,  1855,  down  to  the 
last  letters  which  she  wrote  to  her  husband  in  answer  to  the  cruelty 
of  this  libel,  he  must  show  you  that  she  had  conceived  a passion  of 
illicit  love,  so  vehement  and  so  absorbing  towards  Sumner  as  nec  • 
essarily,  when  opportunity  was  afforded,  would  lead  to  the  commis- 
sion of  the  offense  with  which  she  is  charged.  They  must  take 
that  step,  or  they  do  not  advance  in  the  least  degree  the  inference 
of  guilt  from  the  circumstantial  evidence  of  this  trial. 

Now,  I am  about  to  have  the  pleasure  to  lay  before  you  conclu- 
sive proofs,  that  if  you  take  that  life  from  January  down  to  the 
last  period  to  which  the  evidence  in  the  case  has  traced  it,  it  is  per- 
fectly manifest  that  the  general  and  habitual  tone  of  her  sentiment, 
of  her  affection,  was  steadfastly  for  her  husband;  that  she  loved 
him  affectionately,  deeply,  constantly,  and  always,  and  although  she 
might  have  been  a little  influenced,  her  love  a little  suspended,  by 
^his  intimacy,  which  she  and  all  of  us  so  greatly  regret,  that  it  re- 
vived again,  in  all  its  original  strength,  the  moment  the  sharp  reali- 
ties of  life  brought  her  back  again  completely  to  herself.  And  I 
shall  respectfully  submit,  in  the  next  place,  that  whatever  your 
opinion  may  be  as  to  the  extent  to  which  this  intimacy  with  Sumner 
had  proceeded,  and  how  far  her  interest  in  him  had  been  carried, 
it  is  perfectly  plain,  on  the  evidence  introduced  by  the  libellant 
himself,  that  it  stopped  short,  wholly  short,  of  the  commission  of 
the  last  great  offense. 

Here  Mr.  Choate  referred  to  two  letters  put  in  evidence  by  plaintiff,  written 
by  Sumner  to  defendant,  one  of  which  was  never  opened  by  her,  and  both  found 
in  an  exposed  place.  From  these  facts,  he  claimed  that  the  letters  could  not  be 
relied  upon  as  proof  that  the  defendant  loved  Sumner,  but  implied  a con- 
trary inference.  He  explained  w’hy  the  evidence  of  defendant’s  letters  to  Sumnei 


ON  BEHALF  OF  IILLEN  MARIA  DALTON. 


2Sd> 


had  been  ruled  out.  He  then  reminded  the  jury  that  their  oaths  forbade  them  to 
consider  testimony  which  the  court  had  excluded,  in  arriving  at  a verdict.  He 
contended  at  great  length  that  none  of  the  letters  contained  evidence  of  de- 
fendant’s love  for  Sumner,  nor  of  guilt  between  them,  and  that  this  theory  had 
not  been  sustained.  He  then  commented  on  the  circumstances  of  the  defendant’s 
last  ride  with  Sumner,  to  Brighton  and  Watertown,  and  claimed  that  this  testi- 
mony revealed  nothing  criminal  or  unnatural.  He  then  continued . 

34.  Crime  cannot  be  inferred  from  proof  of  unlawful 

LOVE  AND  OPPORTUNITY. 

I suppose  my  learned  friend’s  argument  will  be  upon  this  point, 
to  bring  in  his  ecclesiastical  law  books  to  prove  that  they  have 
somewhere  broached  the  doctrine,  that  if  there  is  proved  to  have 
been  unlawful  love  and  opportunity,  the  jury  may  infer  the  crime. 
I ask  your  honor  to  instruct  the  jury  that  whatever  such  authority 
may  be  quoted,  we  have  no  such  law  as  that  in  this  commonwealth; 
and  upon  this  point  I pray  your  honor’s  attention  to  the  case  of 
Dunham  v.  Dunham.  I claim  that  we  are  not  bound  by  it,  what- 
ever those  works  may  declare.  They  seem  to  be  of  the  opinion 
that  where  there  is  unlawful  love  and  an  opportunity,  adultery  is 
necessary  as  a sort  of  chemical  result.  Do  they  forget  that  there 
is  such  a thing  as  free  will,  such  a thing  as  conscience,  such  a thing 
as  recollection  of  the  teachings  of  religion,  such  a thing  as  shame, 
such  a thing  as  a point  at  which  to  stop  and  a point  from  which  to 
go  back  ? They  forget  the  inherent  virtue  that  pervades  the  nature 
of  woman.  They  forget  such  a word  as  that.  And  therefore  I 
say  that  the  doctrine  is  old,  poor,  monkish,  artificial,  and  has  never 
been  adopted  in  this  State,  and  never,  as  my  learned  brother  will 
present  it  to  you,  in  any  country;  for  I believe  the  work  holds  that 
if  it  turns  out  that  the  opportunity  did  not  as  a matter  of  fact  carry 
the  parties  to  the  guilt,  there  is  an  end  of  it.  I contend  that  there 
is  no  divorce  to  be  granted  for  loving  or  for  having  an  opportunity, 
if  the  parties  do  not  indulge.  There  is  no  proof  of  such  indul- 
gence; and  therefore  every  word  of  the  evidence  that  I have  brought 
before  you  this  morning,  is  proof  to  the  contrary.  Upon  this  case 
it  stands  demonstrated,  and  I entreat  your  judgments  upon  your 
oaths  to  say,  that  whatever  fancy  or  vanity  there  may  have  been, 
her  heart  was  not  affected,  at  all  events  she  did  not  yield  so  far  as 
to  carry  her  beyond  the  line  of  perfect  personal  innocence.  I 
imagine,  gentlemen,  that  this  is  pretty  nearly  the  end  of  the  case, 
and  I might  here  invoke  your  judgment  and  leave  it. 

19 


290 


SPEECH  OF  RUFUS  CHOATE 


Here  Mr.  Choate  referred  to  the  exchange  of  rings  and  presents  to  show 
that  those  acts  were  open  and  unconcealed,  and  were  not  evidence  against  de- 
fendant. He  continued ; 


35.  Circumstances  showing  that  defendant  never  declared 
SHE  LOVED  Sumner. 

I do  not  know  whether  my  learned  brother  will  think  it  worth 
his  while  to  comment  upon  a little  evidence,  which,  however,  they 
introduced,  and  I cannot  therefore  pass  entirely  unnoticed.  Some 
of  it,  particularly  that  of  Miss  Coburn,  may  be  deserving  of  our 
attention;  while  that  of  Mary  Hunter  I maintain  to  be  unworthy  of 
it  in  the  least  degree.  Upon  that  they  may  argue  some  interest  in 
Sumner.  You  will  scarcely  have  forgotten  that  Mary  Hunter  told 
you  that  on  the  day  of  the  flogging  affair,  between  the  time  when 
Porter  was  beaten  and  the  time  when  Sumner  was  brought  in  to  be 
beaten  also,  she  heard  the  respondent  tell  her  husband  that  he  was 
no  husband  of  hers;  that  he  should  not  be  or  would  not  be  her 
husband;  that  she  hoped  a dagger  or  two  would  be  stuck  in  his 
heart;  and  all  the  rest  of  that  testimony.  They  gravely  produce 
such  trash  as  that,  to  show  you  that  she  shamelessly  avowed  to  his 
face  that  she  preferred  Sumner  to  him.  I do  not  believe  that  if  I 
had  passed  this  over,  my  learned  friend  would  have  said  anything 
about  it;  but  it  was  introduced,  and  I suppose  was  intended  to 
make  an  impression.  To  be  sure,  Mary  Hunter  is  compelled  to 
admit  that,  on  that  very  night,  Dalton,  who  had  heard  it  all,  slept 
with  his  wife;  and  that  from  that  time  forward  for  three  weeks  he 
held  her  upon  his  own  pillow  to  his  heart,  which  had  not  yet  con- 
demned. You  are  glad,  I apprehend,  to  remember,  gentlemen, 
that  it  is  established  by  the  series  of  letters  we  have  laid  before 
you,  that  he  continued  to  declare  his  love  for  her,  and  his  full’  be- 
lief that  she  reciprocated  that  love.  And  yet  this  woman  is  brought 
here  to  make  you  believe  that  under  the  circumstances  that  took 
place  that  night,  she  turns  round  and  tells  him  to  his  head  : You 
are  no  husband  to  me,  and  Sumner  is  the  man  I love. 

Mr.  Choate  then  referred  to  the  testimony  of  Adelaide  Coburn  on  this  point, 
and  claimed  that  the  wife’s  language  on  that  occasion,  when  she  entreated  her 
husband  to  remain  with  her,  and  added  “ you  are  no  husband  of  mine  if  you 
leave  me  now,”  was  not  inconsistent  with  a warm  affection  on  her  part  toward 
him.  With  great  ingenuity  he  sought  to  turn  the  evidence  to  his  advantage,  and 
pointed  his  argument  by  an  illustration  from  Virgil’s  famous  epic.  He  said: 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


291 


36.  Dido’s  entreaty  with  ^neas. 

My  friend  is  welcome  to  the  evidence,  if  he  will  only  make  the 
proper  use  of  it.  Have  we  not  seen  ten  thousand  parallel  cases, 
and  is  not  that  exactly  what  we  should  expect  to  find;  her  praying 
him  not  to  go,  presenting  to  him  every  inducement  not  to  go,  and 
even  adding,  in  the  language  of  frantic  and  imprudent  impreca- 
tion upon  him:  I hope  you  will  get  killed  if  you  go;  for  God’s 
sake  stay  with  me;  stay  with  me  or  you  are  no  husband;  I hope 
you  will  get  killed  if  you  go.  Is  it  not  a fine  touch  of  human 
nature  in  the  heart  ? I submit  it  to  my  learned  friend,  and  pray 
his  commentary  upon  it.  And  inasm.uch  as  he  meets  my  explana- 
tion with  a smile,  may  I be  permitted  to  ask  him  if  it  has  not  been 
regarded  a fine  touch  and  true  to  nature,  in  the  Roman  poet  when 
he  drew  the  Carthagenian  queen;  when  she  had  been  driven  even 
to  unsex  herself  in  entreating  ^neas  to  remain,  and  appealed  to 
the  memory  of  that  secret  meeting  in  the  cave  during  the  storm,, 
when  she  entreated  him  by  his  offspring  unborn  and  by  the  future 
of  Carthage  to  stay;  and  then,  when  she  found  him  still  fixed  and 
determined  upon  his  departure,  breaking  out  before  the  tempest  of 
her  passion  and  praying  that  he  might  perish  by  the  storm  and  the 
whirlwind  and  the  flood,  without  the  care  of  friends  or  gods,  upon 
the  angry  sea;  and  again,  when  another  reaction  came,  falling  back 
fainting,  and  carried  by  her  servants  to  her  couch!  And  do  we  not 
find  that  same  fine  touch  of  nature  in  the  mother  or  the  affectionate 
sister,  every  day  of  our  lives,  when  she  says  to  the  froward  boy, 
“ Stay  at  home,  or  I hope  you  will  have  your  head  broke  for  going 
out  at  such  a time  as  this  ? ” That  is  all  there  is  of  it.  It  is  ex- 
actly that  outbreak  of  human  nature  which  we  constantly  witness; 
and  I ask  you  if  this  is  not  ten  thousand  times  more  probable  than 
the  enormous,  foolish  and  barbarous  explanation  which  Mary  Hun- 
ter affords  of  it. 

37.  Defendant’s  love  for  her  husband. 

I believe  I have  now  gone  over  all  the  evidence  upon  which  the 
learned  counsel  have  relied  here  to  show  how  far,  to  what  extent 
this  affection  of  Mrs.  Dalton  for  Sumner  proceeded.  I have  re- 
spectfully submitted  to  you  that  it  was  a light,  transient,  superficial 
fancy,  and  no  more;  for  the  very  instant  she  discovered  that  his 
designs  went  further  than  her  virtue  and  her  instincts  approved, 
they  were  met  and  repelled.  If  that  be  the  result  of  the  evidence, 


292 


SPEECH  OF  RUFUS  CHOATE 


of  course  all  this  part  of  the  case  is  at  an  end.  But  I am  only 
too  happy  to  call  to  your  remembrance,  that  in  regard  to  the  whole 
body  of  evidence  which  is  laid  before  you,  if  you  take  her  entire 
life  as  it  is  brought  before  you  from  January,  1855,  when  their 
courtship  began,  until  her  very  last  letter  in  answer  to  his  libel, 
which  terminates  the  series,  you  will  find  it  marked  by  a sweet, 
passionate  and  beautiful  love  for  her  husband,  as  an  entire  little 
life,  one  long,  true,  constant  love,  never  interrupted,  never  dis- 
placed. Once  and  for  a few  weeks  losing  somewhat  of  its  entire 
control,  but  recovering  it  again  in  a moment  and  flowing  strongly 
and  beautifully  as  ever.  Let  me  remind  you  how  the  evidence 
stands  in  relation  to  that  fact,  which  is  of  a good  deal  of  import- 
ance and  authority,  in  appreciating  all  parts  of  this  case,  and  may 
do  very  much  towards  determining  whether  she  is  yet  a wife  fit  for 
the  arms  of  Dalton  and  deserving  your  favorable  verdict.  Weigh- 
ing ail  the  circumstances,  what  do  they  show  us  ? 

She  was  a child  at  school  when  Dalton  sought  her  honorably  in 
marriage.  There  is  no  doubt,  for  Dalton  feelingly  and  strongly  so 
declared,  and  I think  we  had  other  testimony  to  the  same  effect, 
that  she  was  modest,  uncommonly  so,  and  to  such  an  extent  that, 
although  he  met  her  often,  he  sought  in  vain  to  catch  her  eye  in 
the  street  as  she  walked  to  and  from  school.  It  was  only  when  ad- 
dressed honorably  and  openly  for  marriage,  that  she  yielded  him 
her  heart.  I submit  that  it  is  perfectly  clear  that  Dalton  had  se- 
cured that  great  thing,  a pure  and  modest  young  woman’s  first  love. 
Look  at  her  after  life,  trace  it  from  the  hour  of  marriage,  and  you 
find  a uniform  concurrence  of  the  evidence  in  every  quarter  that 
she  was  ever  affectionate  and  fond;  that  she  made  his  house  and 
his  home  like  another  garden  of  Eden.  We  have  the  universal  tes- 
timony uncontradicted,  of  everybody  everywhere,  that  she  was  ever 
affectionate,  ever  fond,  never  away  for  a moment  when  she  might 
hope  to  have  the  pleasure  of  his  society  there,  never  absent  from  a 
meal,  never  away  at  the  hour  of  supper,  never  neglecting  a solitary 
duty  of  the  wife,  even  to  the  stitching  of  a button  upon  his  shirt- 
collar,  but  always  faithful,  always  affectionate,  always  tender.  It 
will  add  much  to  a correct  understanding  of  this  part  of  the  case 
to  read  Dalton’s  letters  to  her  from  the  jail,  to  see  whether  he  then 
had  anywhere  any  reason  to  remind  her  that  she  was  during  those 
few'  W'eeks  becoming  absent-minded,  engrossed,  or  irritable,  or  that 
she  was  at  all  changed.  Not  a word  of  it.  There  is  not  a little  of 
evidence  to  show  it,  but  everything  on  the  contrary  demonstrates 


ox  BEHALF  OF  HELEN  MARIA  DALTON. 


293 


that  at  every  moment  of  time  which  she  could  find  she  devoted  to 
her  husband,  that  all  that  time  she  appeared  the  same,  and  mani- 
fested that  unchanged  and  affectionate  tenderness  and  care;  that 
she  was  never  moody,  never  gloomy,  never  apparently  thinking  of 
somebody,  never  apparently  sorry  to  see  him;  never  neglectful  of 
the  ten  thousand  little  cares  through  which  the  demonstration  of 
love  exercises  and  enjoys  itself;  never  absenting  herself,  but  always 
there,  always  there  through  it  all.  I confess  that  I attach  an  im- 
portance to  all  this  beyond  my  own  power  of  language  to  tell  or 
convey  to  you,  because  I put  it  to  your  own  hearts  and  your 
own  knowledge  of  life,  if  her  heart  had  not  been  his,  could  she  not 
have  changed  during  those  five  or  six  weeks  in  her  husband’s  eye. 
Could  she  love  God  and  Mammon  ? Could  her  heart  own  two 
loves  at  once?  No,  gentlemen;  she  would  have  been  changed,  she 
would  have  been  away  at  his  meals,  inattentive  to  his  wants,  un- 
moved and  unregardful  of  his  care — a changed  wife  in  all.  But 
what  is  the  fact  ? I submit  that  it  stands  entirely  demonstrated 
here,  through  that  whole  critical  period,  upon  the  testimony  of  her 
husband  himself,  again  and  again,  m.ost  fully  and  unequivocally 
delivered  in  his  letters  from  the  jail,  that  she  was  not  changed  to 
him  for  one  hour.  This  all  follows  close  upon  the  affair  of  the 
Shawmut  avenue  tragedy;  and  I entreat  your  attention  that  there 
was  no  mourning,  no  tears  over  Sumner’s  untimely  grave.  Was 
there  anything  in  the  three  weeks  following  to  show  that  she  did 
not  through  all  this  cling  to  her  old  love  exactly  as  before  ? Did 
not  her  husband  leave  her  every  morning  with  a kiss,  take  her 
upon  his  knee,  find  her  there  every  evening  when  he  came  home  ? 
A striking  evidence  how  affectionate  was  their  intercourse  is  found 
in  the  fact  that  when  Mr.  Gove,  hearing  the  rumor  of  this  scandal 
and  this  misery  while  in  the  West,  coming  home  distracted  and 
anxious  to  see  what  it  was  that  was  threatened,  is  greeted  on  his 
return  by  that  first  sight  which  he  sees — the  wife  sitting  still  upon 
her  husband’s  knee.  And  thus  those  three  weeks  passed  away. 
One  or  two  little  irritations  arose,  it  is  true,  because  she  thought  he 
was  a little  hasty  in  requiring  her  to  disown  her  own  beloved  sister, 
but  yielding  in  a moment  she  throws  her  arms  about  him  and  says: 
I yield  it  all;  I will  do  it  if  you  say  so;  I don’t  see  the  reason  of 
it,  but  I will  do  it  if  you  say  so.”  And  when  once  he  left  her  upon 
a certain  Friday,  we  have  the  testimony  of  Mrs.  Richardson  how 
distracted  she  was  during  that  absence,  how  she  wandered  almost 
at  midnight  to  her  mother’s  house  to  seek  an  explanation,  and  to 


294 


SPEECH  OF  RUFUS  CHOATE 


complain  and  cry  out  that  the  Daltons  were  getting  away  her  hus- 
band from  her.  And  then,  when  she  goes  to  the  jail,  she  is  like  a 
light  in  the  jail,  that  every  day  when  she  can  drag  one  foot  after 
the  other,  in  order  to  give  him  every  possible  provision  which  she 
could  afford,  asking  him  to  have  his  clothes  returned,  bringing  him 
bouquets  to  give  him  pleasure  in  his  cell — pansies  ‘‘  for  remem- 
brance,” as  poor  Ophelia  says — every  hour,  every  moment,  down  to 
the  very  last,  when  he  goes  from  the  jail  and  declines  to  meet  her. 
I take  that  whole  life  together,  that  little  rounded  life  from  Janu- 
ary, 1855,  to  January,  1856,  and  I say  that  there  is  not  in  the  his- 
tory of  womanhood,  a history  of  married  life,  a year  more  beauti- 
ful, true,  constant.  I ask  you,  is  not  a love  like  this  worth  having  ? 
Is  it  not  the  evidence  of  a good  heart,  a rich  heart,  a wealth  for 
him  who  knows  how  to  cultivate  it  ? 

Taking  this  body  of  evidence,  we  find  on  the  other  hand  as 
miserable  a piece  of  folly  and  nonsense  as  could  well  happen,  weeks 
of  shame  afterwards  looked  upon  with  abhorrence,  weeks  of  sin  as 
she  calls  it  herself  a thousand  times  over,  explaining  and  asseverat- 
ing every  moment  that  she  was  innocent  of  the  great  crime;  weeks 
of  sin,  but  no  week,  hour  or  moment  of  illicit  love;  even  if  there 
could  have  been  an  illicit  love,  one  which  stopped  short,  far  short, 
of  its  final  consummation  of  guilt. 

Here  Mr.  Choate  read  the  first  letter  written  by  defendant  to  her  husband 
in  jail,  indicating  her  affection  for  him.  Fie  then  showed  that,  with  a knowl- 
edge of  all  the  facts  in  the  case,  except  the  charge  of  abortion,  which  he  claimed 
to  be  a conspiracy  against  her,  Dalton  believed  his  wife,  and  continued  to  love 
her.  He  continued  : 

38.  A CONVICTION  ASKED  ON  THE  EVIDENCE  ON  WHICH  PLAINTIFF 
REGARDED  HER  INNOCENT. 

I call  your  attention  particularly  to  one  or  two  of  these  last 
letters  of  Dalton  from  the  jail,  because  they,  in  my  judgment,  put 
an  end  to  this  case.  If  he,  upon  all  this  evidence,  believes  her  to 
be  innocent  of  adultery,  can  he  stand  before  the  jury  to-day  and  ask 
you  upon  the  very  same  evidence  to  believe  her  guilty  of  adultery  ? 
Is  not  he  of  all  human  beings  the  best  qualified  to  judge  of  the  evi- 
dence and  to  judge  of  its  effect?  When,  therefore,  you  look  upon 
his  letters,  and  compare  them  with  the  evidence  in  this  case,  all  of 
it  known  to  him  when  these  letters  were  written,  I shall  expect  you 
to  use  it  in  his  way.  In  the  first  place  you  will  say,  Dalton  had 
heard  every  word  of  this  evidence,  and  if  it  really  and  necessarily 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


295 


conducts  us  to  an  inference  of  guilt,  it  must  come  to  us  exagger- 
ated. Was  not  the  husband’s  ear  quick  to  hear,  and  the  husband’s 
eye  quick  to  see  ? Would  he  not  know  if  she  had  said  that  which 
was  to  strike  a dagger  into  his  heart  ? Did  not  he  hear  it,  if  she 
ever  exclaimed,  I love  Sumner  ? Certainly  he  must  have  heard  it, 
if  it  had  been  said.  You  will  say,  then,  that  there  is  exaggeration 
in  the  testimony  as  reported  to  you,  if  it  conducts  you  to  a more 
severe  judgment  than  the  husband  himself,  who,  if  anybody,  could 
hear  and  interpret  it  aright.  But  there  is  another  view  of  this  evi- 
dence of  Dalton’s,  the  just  and  full  import  of  which  I pray  you  to 
weigh.  I have  touched  upon  it  again  and  again,  but  I cannot  tear 
myself  from  it.  I cannot  divest  myself  of  the  impression  that  it 
disposes  of  the  controversy.  It  is  the  circumstance  that  Dalton  of 
all  human  beings  had  the  best  means  of  judging  of  the  guilt  or  in- 
nocence of  his  wife,  and  that  his  judgment  is  conclusive  upon  ours. 
Not  that  you  may  not  find  him  a poor,  silly,  trifling  and  fond  fool, 
overcome  by  her  blandishments;  not  but  you  may  be  driven  to  it, 
in  coming  to  the  conclusion  that  he  could  not  judge  whether  she 
was  guilty  or  innocent.  But  there  is  not  a little  of  evidence  to 
show  that  he  has  not  the  average  and  ordinary  share  of  intelligence, 
or  that  he  is  not  altogether  qualified  to  judge  for  himself.  Was  not 
the  husband,  under  the  nature  of  the  circumstances,  the  best  and 
the  severest  of  judges  ? Had  not  jealousy  quickened  his  appre- 
hension, and  even  colored  his  eye  against  her  ? Had  he  not  beaten 
Sumner  almost  to  death  for  improper  familiarities  tendered  by  him 
and  not  sufficiently  promptly  repelled  by  her  ? Was  he  not  jealous 
and  suspicious,  and  therefore  exactly  in  the  mood  to  look  upon  her 
with  more  distrust  than  your  hearts  would  allow  to  entertain  ? And 
when  he  came  to  probe  the  whole  matter  to  the  bottom,  what 
human  being  so  well  as  Dalton  is  entitled  to  belief  ? When  he 
looks  back  and  sees  that  modest  eye,  averted  in  the  street,  that  coy 
reluctance  to  yield  her  virgin  heart,  that  sweet  chastity  of  her  orig- 
inal virgin  person,  who  could  know  as  well  as  he  could  know  how 
truly  she  had  loved  him  always  ? Who  could  know  as  he  must 
have  known  how  to  catch  her  in  a lie,  how  to  probe  her  for  the 
truth,  how  to  come  suddenly  upon  her,  how  to  practice  a little  de- 
ception and  take  her  unawares,  how  to  hang  upon  her  sleep  and 
see  what  she  said  when  conversing  only  with  her  heart  and  her 
spirit,  without  the  assistance  of  her  reason  and  her  judgment  ? 
Who  could  tell  so  well  as  he  how  sincere  was  her  repentance,  and 
how  that  repentance  was  confined  to  a mere  acknowledgment  of 


' 296 


SPEECH  OF  RUFUS  CHOATE 


imprudence,  joined  with  a protestation  of  innocence  or  guilt  ? Who 
could  read  that  heart,  who  try  that  case,  like  Dalton  ? I hope  I do 
not  underrate  the  intelligence  of  the  jury,  upon  whose  intelligence 
so  much  is  depending;  I do  not  fear  the  action  of  the  tribunal 
which  for  her  I have  invoked;  but,  with  the  profoundest  respect 
for  you,  gentlemen  of  the  jury,  and  for  the  court,  I ask  what  one 
human  being  could  best  investigate  the  facts  and  most  surely  know 
how  to  interpret  them,  could  most  certainly  draw  the  right  deduc- 
tions from  this  whole  body  of  circumstances,  if  it  were  not  he  whom 
jealousy  had  exasperated  and  aroused.  He  has  judged,  and  he  has 
found  her  not  guilty,  upon  every  particle  of  evidence  in  this  case 
but  this  hideous,  incredible,  barbarous  allegation  to  which  I am 
coming  in  a moment. 

39.  The  influences  which  changed  the  husband's 

DEMEANOR. 

What  changed  Dalton  when  he  came  out  of  the  jail  ? I briefly 
adverted  to  it  yesterday,  and  may  remind  you  of  it  again  to-day. 
It  was  the  necessity  of  his  unhappy  position.  He  was  on  trial  for 
manslaughter,  and  the  penalty  threatened  to  be  a severe  one.  It 
was  necessary  that  they  should  be  separated;  and  when  they  were 
separated,  he  fell  a victim  to  the  influences  which  were  brought  in- 
evitably to  bear  upon  him.  You  remember  the  passage  in  one  of 
his  letters,  date  of  December  19th,  in  which  he  says: 

My  dear  wife,  if  the  world  could  understand  your  case  as  I 
do,  I should  feel  happy;  but  as  they  do  not,  we  must  make  the  best 
of  it.” 

There  it  is;  there  is  his  judgment.  For  myself  I have  tried  you; 
for  myself  I approve  you;  you  gave  me  your  virgin  heart  and  per- 
son; you  should  make  me  the  father  of  my  first  child;  I have  ap- 
preciated your  error;  I have  investigated  its  origin,  the  extent  to 
which  it  was  carried,  and  I find  you  the  same  dear  Nellie  that  won 
my  heart,  and  would  to  God  that  the  judgment  of  the  world  was  as 
my  judgment,  would  to  God  that  the  opinions  of  the  world  would 
enable  me  to  stand  before  them  and  avow  thus  publicly  what  I 
assure  you  is  the  settled  conviction  of  my  heart  and  judgment.  To 
show  you  how  long  this  continued,  how  long  and  how  steadily  he 
held  these  opinions,  I have  to  call  your  attention  to  letters  which 
he  wrote  towards  the  close  of  the  time  when  he  was  in  jail.  We 
heard  something  about  forged  letters.  It  is  to  be  stated  for  the 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


297 


thorough  understanding  of  these  last  letters  of  his,  that  he  had 
heard  of  those  forged  letters,  that  he  had  heard  from  Nellie  that 
they  were  forgeries,  as  by  law  you  are  bound  to  take  them  to  have 
been.  You  will  see  that  they  never  altered  his  sentiment  in  the 
slightest  degree,  nor  colored  in  the  least  degree  the  expression  of 
his  affection  for  her.  I shall  ask  you  to  take  those  last  letters 
which  he  wrote  her  from  the  jail;  and  I entreat  you  to  remember 
that  there  is  not  a line  in  those  letters  from  beginning  to  end,  there 
is  no  intimation  that  some  dark  speech  had  reached  his  ear  and 
changed  his  mind.  There  is  an  intimation  that  necessities  control 
him  and  make  it  proper  for  them  not  to  meet  quite  so  openly  or 
immediately  as  he  had  anticipated;  but  there  is  not  a suggestion, 
from  first  to  last,  that  down  to  that  hour  he  had  heard  a single 
thing  to  change  his  mind — not  one.  I submit,  therefore,  that  the 
explanation  is  entirely  in  accordance  with  what  I assumed  yester- 
day, that  having  been  compelled  by  the  necessities  of  his  position, 
as  he  believes,  to  live  away  from  her,  his  mind  was  perplexed  and 
distracted  by  the  scandal  which  abused  his  ear  and  at  last  reached 
and  changed  his  feelings  towards  her.  Now  let  us  see  that  in  these 
last  letters  written  from  the  jail,  he  still  loved  her,  and  still  promised 
to  meet  her,  when  they  could  arrange  their  plans  for  their  future 
life.  The  first  is  dated  January  8th. 

Here  Mr.  Choate  read  passages  from  several  letters  written  by  Dalton  to  his 
wife,  dated  in  the  early  part  of  January,  1856.  Court  then  took  a recess,  after 
which  he  resumed  his  argument  as  follows  : 

40.  Evidence  of  the  alleged  confessions. — A confession  of 

GUILT  IMPOSSIBLE  UNDER  THE  CIRCUMSTANCES. 

We  have  arrived,  in  the  course  of  the  argument,  gentlemen,  to 
the  evening  of  the  25th  of  February.  The  case  of  the  libellant,  if 
it  can  be  maintained  at  all,  is  to  be  maintained  on  this,  that  al- 
though down  to  that  night  the  respondent  had  continued  constant 
in  her  asseveration  of  innocence  of  the  great  crime,  and  her  hus- 
band has  implicitly  believed  it,  on  that  night,  not  having  succeeded 
in  forcing  an  interview  with  him  at  the  house  of  Coburn,  she  con- 
fesses to  him  that  she  had  been  guilty  of  adultery.  Unless  this 
part  of  the  case  is  established  by  credible  and  undoubted  testimony 
to  your  reasonable  conviction,  it  is  certain  that  there  is  no  case  for 
the  libellant.  We  are  brought  at  once,  then,  to  the  examination  of 
that  important  part  of  the  case.  And  perhaps  I cannot  better  be- 
gin what  I have  to  say  in  relation  to  it,  than  by  asking  you  whether 


298 


SPEECH  OF  RUFUS  CHOATE 


it  is  at  all  conceivable,  as  a matter  of  probability,  that  this  respond- 
ent on  that  night  all  at  once  falls  into  a confession  of  guilt.  Down 
to  that  hour,  remember,  her  story  had  been  uniform,  and  repeated, 
and  constant;  down  to  that  hour,  on  her  oath,  in  the  pangs  of  pre- 
mature childbirth,  with  tears  and  attestations  to  God  Almighty,  she 
had  declared  herself  innocent;  down  to  that  time  her  husband  had 
a hundred  times  said  he  had  believed  her  to  be  so.  And  the  alle- 
gation on  the  part  of  the  libellant  is,  that  then  and  there,  under  the 
influence  of  some  incomprehensible  motive  or  another,  she  sud- 
denly and  instantly  changes  her  tone  and  admits  her  guilt.  I think, 
gentlemen,  that  the  first  thought  which  would  present  itself  to  your 
mind,  with  which  you  should  most  naturally  begin  this  inquiry,  is, 
whether  or  not  it  is  at  all  conceivable,  as  a matter  of  probability,  on 
any  view  of  the  case,  that  she  could  then  and  there  go  and  confess 
it.  Those  of  you  who  believe  with  me  on  this  survey  of  the  evi- 
dence, and  on  the  judgment  of  the  libellant  himself,  that  she  was 
wholly  innocent  of  guilt,  will  of  course  reject  it  as  entirely  incred- 
ible and  impossible.  But  I respectfully  submit  to  those  of  you  who 
may  feel  any  degree  of  doubt  in  regard  to  the  matter,  who  might 
still  think  it  in  any  degree  an  open  question  whether  she  was  or 
was  not  possibly  guilty,  although  there  is  no  proof  of  it — I ask 
you  whether  you  believe  it  to  be  possible  that  then  and  there  she 
makes  the  confession?  May  I ask  you,  gentlemen,  with  very  great 
earnestness  and  confidence,  if  you  can  discover  a conceivable  mo- 
tive for  it  ? I can  very  well  understand,  assuming  for  a moment 
the  hypothesis  of  guilt,  that  although  she  had  down  to  that  hour 
continued  steady  and  constant  in  her  asseveration  of  innocence, 
upon  a death-bed,  in  a moment  of  anticipated  final  separation  from 
her  husband,  wishing  to  make  a clean  and  clear  breast  and  reveal 
everything — if  she  had  down  to  that  time  kept  so  perilous  a secret 
as  this  in  her  bosom,  that  she  would  have  declared  it. 

But  how  stands  the  admitted  fact;  for  what  purpose  is  it  on  the 
confession  of  everybody  in  this  case,  that  she  seeks  this  interview 
with  her  husband  ? Everybody  tells  you — J ohn  H.  Coburn  tells  you, 
that  in  that  interview  she  proposes  to  fly  with  him  to  California, 
where  they  can  live  away  and  alone.  Every  particle  of  evidence  in 
this  case,  entitled  or  not  entitled  to  confidence,  makes  it  perfectly 
clear  to  a demonstration,  that  she  solicited  that  interview  because, 
tortured  by  his  extraordinary  absenting  himself  from  her  since  he 
left  jail,  she  was  anxious  to  make  one  more  effort  to  win  him  back. 
From  the  hour  he  left  the  prison,  down  to  the  night  of  the  25th  of 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


299 


February,  she  had  expected  to  see  him;  down  to  that  time  she  had 
been  kept  from  him  by  influences  incomprehensible  to  herself; 
down  to  that  time  she  felt  scandal  and  slander  were  keeping  them 
apart;  that  his  ear  had  been  abused,  and  that  he  only  wanted  one 
more  assurance  from  her  lips  that  she  had  told  all  the  truth,  and 
he  would  come  back  to  her.  For  that  purpose,  the  result  of  all 
the  evidence  in  this  case  proves,  she  seeks  him,  and  then  and 
there — I respectively  submit  to  you  in  advance — that  it  is  a stu- 
pendous moral  improbability,  which  nothing  can  sustain,  that  on 
any  possible  theory  of  this  case,  she  should  meet  him  and  fall  into 
a confession  of  adultery.  For  what  conceivable  purpose,  I ask 
you  again,  on  any  theory  of  the  case,  should  she  do  it  ? She  was 
dying  to  live  with  him;  her  heart  craved  him;  she  must  live  there 
or  bear  no  life,  and  the  whole  object  of  the  interview,  obtained  par- 
tially, they  say,  by  stratagem — and  I dare  say  it  is  so,  for  they  did 
not  intend  to  meet — was  to  remove  any  lingering  doubt  or  uncer- 
tainty on  his  mind  in  regard  to  her  supposed  guilt.  The  very  ob- 
ject of  it  was  to  overcome  any  obstacle  that  scandal  and  slander 
had  placed  between  their  reunion,  and  therefore  I submit  it  is  prov- 
able by  no  amount  of  evidence,  that  meeting  him  for  that  purpose, 
she  falls  instantly  into  a confession  of  guilt.  Whether  she  was 
guilty  or  innocent,  I submit  to  you;  we  know,  as  men  of  common 
intelligence,  that  she  would  have  continued,  then  and  there,  stead- 
fast in  her  assertion  of  innocence;  was  she  so  great  a fool  as  to 
think  for  a moment,  that  if  after  so  many  and  such  solemn  assevera- 
tions of  her  innocence  she  could  not  win  her  husband  back,  a little 
confession  of  adultery  would  do  it  ? If  he  would  not  live  with  her 
an  innocent  woman,  would  he  live  with  her  a guilty  woman  ? If  he 
would  not  live  with  her  believing  her  heart  to  be  his  and  her  body 
to  be  his,  would  he  live  with  her  after  he  learned  that  she  had  sur- 
rendered both  to  his  pollution  ? I put  it  to  you,  in  advance,  gen- 
tlemen, that  if  an  angel  from  heaven,  a being  assuming  to  come  in 
the  guise  of  an  angel,  should  appear  before  you  with  such  a story 
as  this,  it  would  bring  his  origin,  mission  and  character  into  great 
question  with  you.  Was  she  afraid  at  that  time  of  any  new  revela- 
tion ? Certainly  none  at  all.  The  forged  letters,  if  she  had  heard 
of  them,  she  declared  to  be  forgeries,  and  her  husband  believed  it. 
Sumner  was  in  his  grave;  the  last  voice  that  accused  her  was 
hushed  in  death;-  and  therefore,  if  down  to  that  hour,  fearless  of 
exposure,  fearless  of  detection  anywhere,  or  from  any  quarter,  she 
had  continued  steadfast  in  this  assertion  of  innocence,  I submit 


oOO 


SPEECH  OF  RUFUS  CHOATE 


that  every  motive  that  could  weigh  with  the  human  mind,  would  have 
kept  her  constant  in  it  to  the  end;  and  if  down  to  that  time,  while 
Sumner  was  still  living,  and  these  letters,  if  they  were  not  forged, 
might  have  been  invoked  against  her  and  proved  to  be  genuine,  she 
had  never  faltered  in  that  assertion,  and  if  every  motive  of  fear  had 
gone,  and  every  motive  for  persistence  in  her  original  statement 
had  remained  in  all  its  force,  I repeat,  even  upon  the  testimony  of 
John  H.  Coburn  and  Edward  O.  Coburn,  and  from  all  the  facts 
and  circumstances  in  this  case,  she  seeks  that  interview  for  the 
single  purpose  of  disabusing  the  ear  of  her  husband  of  this  scandal 
and  slander,  by  which  he  was  kept  so  mysteriously  away  from  her, 
and  therefore  it  is  not  possible,  under  the  ordinary  and  known  laws 
of  human  nature,  that  she  should  not  have  persisted  in  her  inno- 
cence still.  Those  of  you  who  believe  with  me  all  the  evidence  in 
this  case  as  judged  by  Dalton  himself,  will  declare  her  innocent; 
those  of  you  who  are  in  any  degree  of  doubt  upon  that  subject, 
will  also  say  she  is  innocent.  I have  therefore  to  call  your  atten- 
tion directly  to  the  nature  of  the  evidence  by  which  they  attempt 
to  overcome  our  claim  of  the  improbability  of  this  confession. 

41.  Nature  and  character  of  confessions  as  evidence. 

And  this  makes  it  necessary  and  proper  that  I should  say  a word 
in  advance  in  regard  to  the  nature  and  danger  of  this  kind  of  evi- 
dence on  which  they  are  now  relying.  It  is  the  evidence  of  con- 
fession, and  confessions  on  the  reported  words  of  the  speaker.  It 
is  very  common  to  say,  and  it  has  passed  into  a maxim  of  the  law, 
and  it  is  one,  I dare  say,  upon  which  his  honor  will  give  you  the 
results  of  his  own  experience  in  his  instructions  to  the  jury,  that  it 
is  a kind  of  evidence  in  all  circumstances  extremely  dangerous,  and 
to  be  most  critically  and  carefully  considered  by  the  jury.  The 
evidence  of  confession  may  sometimes  be  the  highest  and  most 
satisfactory  in  a judicial  investigation;  and,  on  the  other  hand,  it 
may  be,  according  to  the  circumstances  of  the  case,  the  most  worth- 
less by  which  human  rights  are  ever  brought  in  peril  in  a court 
of  law. 

Gentlemen,  if  we  can  feel  undoubted  confidence  that  the  exact 
words  of  the  speaker  are  brought  before  us  as  they  were  uttered;  if 
we  can  feel  undoubted  confidence  that  we  have  them  all  in  their 
proper  order  and  according  to  their  sense  and  meaning  as  they 
were  spoken;  if  we  can  feel  undoubted  confidence  that  nothing  has 
been  omitted,  nothing  has  been  colored,  the  right  collocation  has 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


301 


been  pursued  from  first  to  last,  and  that  the  true  substantial  sense 
and  effect,  as  it  was  intended  when  they  were  uttered,  has  been 
given,  we  may  then,  with  great  confidence  and  certainty,  proceed 
to  the  most  solemn  of  adjudications.  But  if,  on  the  other  hand, 
there  is  reason  to  fear  that  the  words  themselves  may  have  been 
imperfectly  heard;  if  they  come  reported  to  us  by  untrustworthy 
and  unreliable  witnesses;  if  they  are  testified  to  by  persons  under 
strong  temptation  to  color,  to  exaggerate,  to  forget,  to  drop  the  ap- 
propriate qualifications,  to  change  the  order  of  them  as  they  are 
spoken;  if  they  come  before  us  under  such  circumstances  as  these, 
gentlemen,  there  is  no  weaker  or  more  worthless  or  more  pernicious 
description  of  proof  on  which  an  intelligent  jury  are  called  upon 
to  investigate  a case. 

I think  we  need  not  go  further  than  such  a case  as  this  to  indi- 
cate the  danger  of  such  a species  of  evidence.  Had  you  not  had 
it  proved,  by  the  most  undoubted  testimony  in  the  case,  that  Mr. 
Dalton,  with  apparent  sincerity,  declared  in  the  country,  that  Mrs- 
Dalton  had  confessed  to  him  that  she  committed  the  crime  of  adul- 
tery in  Fera’s  saloon.  You  remember  the  testimony  of  William 
Richardson  to  this  point;  and  to  those  of  you  who  know  him  and 
his  character,  and  to  all  of  you  who  have  seen  and  heard  him  on 
the  stand,  I am  sure  there  cannot  be  a particle  of  doubt  that  Dalton 
made  the  declaration  with  apparent  sincerity.  That  he  did  so,  is 
the  evidence  of  Mr.  Richardson,  under  circumstances  that  give  it 
entire  credit  in  the  minds  of  the  jury;  that  he  did  so  submit,  made 
it  perfectly  clear  by  the  fact  that  the  allegation  in  the  libel  charges 
in  terms  adultery  in  Fera’s  saloon.  Dalton  then  made  that  decla- 
ration— and  as  I believe  that  Dalton,  with  all  his  faults,  all  his  mis- 
takes (and  as  much  as  I pity  him,  I have  to  the  same  extent  to 
censure  him),  is  still  an  honest,  intelligent  man — you  have  it  before 
you  that  he  himself,  an  honester  man  than  either  of  these  Coburns, 
a thousand  times  told,  verily  believed,  and  seriously  declared  that 
his  wife  had  confessed  to  his  face  adultery  in  Fera’s  saloon.  That 
you  have  heard  from  him.  Did  she  ever  make  such  a confession 
as  this  to  Dalton  ? Did  she  ever  say  a word  to  him  which,  as  he 
understood  it,  at  a time  when  his  mind  was  fairly  and  freely  under 
the  influence  of  no  sinister  motive  or  biases  or  cause  of  disturb- 
ance— did  she  ever  make  such  a declaration  as  this  to  him  in  her  life  ? 
Gentlemen,  let  his  own  conduct  answer  that  question.  I had  oc- 
casion to  advert  to  it  yesterday,  but  it  is  necessary  again  to  call  your 
attention  to  it.  Dalton  himself  declared  that  the  confession  was 


302 


SPEECH  OF  RUFUS  CHOATE 


made  to  him  about  the  time  of  the  flogging  affair  of  the  17th  of 
November.  That  it  was  made  then,  if  it  was  ever  made,  there  is 
no  matter  of  controversy  or  doubt  in  this  case.  If  any  fact  is 
established,  it  is  this  one:  that  from  the  14th  of  January  until  the 
evening  of  the  25th  of  February,  he  never  met  her  at  all.  This 
confession  of  his  wife,  therefore,  thus  distinctly  and  deliberately 
affirmed  by  him  to  have  been  made  to  him,  was  made  on  or  before 
or  about  the  17th  of  November,  and  within  three  or  four  days  fol- 
lowing that  tragedy.  Did  Dalton  at  that  time  understand  that  to 
be  a confession  of  guilt  in  Fera’s  saloon  ? Didn’t  he  live  with  her 
for  the  three  weeks  following  as  a loving  and  trusting  husband  ? 
Didn’t  he  write  her  letters  which  have  been  so  much  the  subject  of 
commentary  before  you  ? Is  it  not,  therefore,  perfectly  clear,  as  he 
heard  them  first  when  his  ear  was  unabused,  and  his  mind  capable 
of  judging,  and  his  memory  capable  of  accurately  reporting,  that 
he  understood  her  perfectly  ? What  did  he  understand  her  to  say 
then?  Just  what  she  has  said  everywhere,  just  what  she  has  said 
a hundred  times  over  in  her  letters,  more  forcibly  and  more  strongly 
everywhere  against  herself  than  there — that  she  had  sinned  with 
Sumner;  that  she  had  had  improper  intercourse  and  intimacy  with 
him,  and  that  she  had  met  in  the  course  of  that  intimacy  at  Fera’s 
saloon.  That  was  exactly  the  confession  as  she  made  it;  that  was 
exactly  the  manner  in  which  he  understood  it  then,  proved  by  his 
subsequent,  unequivocal  acts;  and  yet  afterwards,  when  he  came 
abroad  and  began  to  look  back  upon  it  from  some  time  subsequent, 
when  he  began  to  conjecture  that  public  opinion  began  to  pro- 
scribe this  and  proscribe  that,  when  his  real  or  false  friends  had 
come  to  whisper  another  story  in  his  ear;  even  then  it  was,  for  the 
first  time,  that,  attempting  to  recall  the  conversation  and  to  find  in 
it  somewhat  to  justify  him  for  the  course  public  opinion,  not  his 
own  convictions,  was  compelling  him  to  adopt,  exceedingly  doubt- 
ful, perplexed  in  the  extreme,  and  endeavoring  to  recall  those  words, 
he  recalls  them  as  a confession  of  actual  guilt. 

I submit  that  you  have  there  an  illustration  and  a warning  that 
should  put  you  upon  your  guard  from  first  to  last,  and  if  you  find 
such  a mind  as  Dalton’s  incapable  of  recalling  a confession  made 
to  him  deliberately  and  distinctly,  and  on  which  he  acted  for  two 
months,  incapable  to  remember,  incapable  to  repeat — judge  you 
whether  or  not  great  caution  is  not  needed  in  weighing  this  kind  of 
evidence,  when  you  appreciate  the  source  from  which  it  comes  be- 
fore us.  Always,  therefore,  gentlemen — and  I pray  his  honor’s  at« 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


303 


tention  and  approbation  to  the  remark — this  species  of  evidence  is 
to  be  weighed  with  the  utmost  degree  of  care  and  caution;  and  I 
suppose,  sir,  that  I speak  the  universal  language  of  the  books  and 
the  universal  experience  of  every  lawyer,  when  I say  to  you  that  in 
the  nature  of  the  case  no  well  founded  reason  to  apprehend  that 
the  words  spoken  were  equivocal  in  their  nature,  that  they  were 
meant  by  the  person  speaking  them  in  one  sense,  and  yet  so  uttered 
that  there  is  danger  that  they  should  be  taken  in  another,  and  when 
they  come  before  you  on  the  report  of  witnesses  untrustworthy, 
testifying  under  strong  apparent  bias  and  motive  to  color  and  ex* 
aggerate,  and  omit  and  put  them  out  of  their  order,  it  is  the  weak- 
est and  least  reliable  testimony  ever  given  in  a court. 

That  is  true,  gentlemen,  of  this  kind  of  evidence,  under  all  cir- 
cumstances; but  may  I not  now  remind  you  a little  more  formally 
and  earnestly,  how  these  confessions  all  come  in. 

42.  Application  of  the  rules  of  evidence  to  the  facts. 

May  I not  remind  you  that  every  one  of  them  is  made  by  a 
party  believing  and  admitting  herself  to  be  guilty  of  something;  by 
a party  who,  under  that  consciousness  of  having  been  guilty  to 
some  extent,  through  sighs  and  bursting  tears,  makes  confession  of 
that  guilt,  intending  to  make  no  confession  of  guilt  beyond  that. 
Is  there  not  extreme  danger  that  the  extent  and  nature  of  the  con- 
fession, which  is  insisted  upon,  will  be  exaggerated  and  colored 
when  it  comes  to  be  reported  to  you  by  parties  with  a disposition 
and  temper  to  report  unfavorably.  Helen  Dalton  did  not  stand  in  a 
position  in  which  she  could  deny  all  impropriety  and  all  guilt;  on 
the  contrary,  her  case  is — and  it  has  this  affecting  and  this  important 
peculiarity — that  she  had  much  wrong  to  confess,  that  she  had 
much  guilt  to  own,  that  she  had  many  temptations  to  acknowledge, 
that  she  had  much  sin  to  pray  God  and  her  husband  to  forgive; 
therefore,  when  she  is  making  confessions  to  this  extent,  is  there 
not  danger  the  most  extreme,  unless  we  can  place  the  most  un- 
doubted reliance  on  the  kind  of  testimony  and  the  character  of 
witnesses  by  whom  it  comes  to  be  reported  to  us,  that  it  will  come 
exaggerated,  and  misconceived  and  overrated,  perilously  and  fa- 
tally, at  the  cost  of  truth. 

Here  Mr.  Choate  argued  that  the  letters  of  defendant  in  evidence  contained 
confession  of  impropriety  and  wrong,  but  not  of  the  great  crime  charged.  He 
then  continued : 


304 


SPEECH  OF  KUFUS  CHOATE. 


Therefore,  you  see,  even  in  the  interpretation  of  writing, 
where  the  party  is  making  a confession  to  some  extent,  there  is 
great  danger  that  we  shall  interpret  those  confessions  beyond  the 
meaning.  And  therefore  I have  to  call  your  attention  to  that 
great  rule  by  which  not  all  circumstantial  evidence,  but  in  a very 
extraordinary  degree  any  evidence  of  confession,  is  to  be  judged 
— that  great  rule  which  applies  and  governs  this  part  of  the  case, 
which  is  that,  if  the  language  employed,  whether  spoken  or  writ- 
ten, is  fairly  and  reasonably  susceptible  of  a twofold  construc- 
tion, it  is  the  duty  of  the  jury  to  take  it  in  the  milder.  It  is  not 
at  all  a matter  of  feeling,  it  is  not  a matter  of  the  heart,  it  is  not  a 
matter  of  charity,  it  is  not  a matter  of  inclination,  but  it  is  a clear 
rule  of  the  law,  that  where  the  language  is  equivocal,  and  where 
circumstances  (and  her  own  folly  among  the  rest)  have  placed  the 
party  in  a condition  in  which  she  must  speak  in  equivocal  ex- 
pression, you  are  bound  everywhere  to  adopt  the  milder  inter- 
pretation ; and  yet  you  see  that  when  testimony  like  that,  not 
resting  upon  letters,  comes  to  be  reported  to  you  by  witnesses 
under  strong  bias  and  feeling,  to  color,  exaggerate  and  over- 
state, it  is  all  but  impossible  that  it  should  come  before  you  in 
form  false  and  distorted. 

43.  Arraignment  of  the  witnesses  to  the  confession. 

The  first  general  remark,  then,  which  I have  to  make  to  you 
on  this  evidence  is,  that  before  the  law  advises  a jury  to  pay  the 
slightest  regard  to  reported  verbal  confessions,  they  ought  to 
have  the  clearest  conviction  that  the  witnesses  who  come  here 
to  report  it  are  perfectly  cool,  unbiased,  impartial,  fair,  just,  and 
under  the  influence  of  no  motive  and  no  temptation  which  should 
induce  them  to  color,  exaggerate  or  distort  it.  The  law  makes 
it,  I submit,  and  I pray  the  observation  of  the  court  upon  this, 
almost  an  indispensable  prerequisite  that  they  should  come  be- 
fore you  through  a source  perfectly  trustworthy  ; through  wit- 
nesses whose  character  is  undoubted  and  justly  unsuspected  by 
the  jury,  so  that  they  should  feel  satisfied  that  they  cannot  by 
any  possibility  have  lost  or  gained  by  their  representation  before 
you.  And  I submit  that  we  come  to  the  evidence  of  confessions 
in  this  case,  evidence  of  a fact  so  improbable  in  itself,  by  this  great 
uncertainty  standing  out  on  the  face  of  it,  that  there  is  not  a 
scintilla  of  testimony  of  confession  against  Helen  Dalton,  but 
of  the  confession  of  that  indiscretion  and  loss  of  self-respect 
about  which  there  is  no  controvers)7-  in  the  case,  except  from 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


305 


witnesses  who  are  not  apparently  entitled  to  the  least  degree 
of  regard  from  the  jury. 

John  H.  Coburn,  who  admits  here  in  this  case  that  he  at- 
tempted to  obtain  money  by  written  false  pretenses  of  Mr. 
Gove,  a State’s  prison  offense  that  ought  to  destroy  his  testi- 
mony in  a moment;  Edward  O.  Coburn,  who  has  to  admit  in  the 
outset  of  the  cause  that  he  is  a robber  to  the  amount  of  seventeen 
hundred  dollars  of  his  father’s  money,  and  Mary  Hunter,  that 
brawny  stranger  of  whom  we  know  that  she  is  a wet  nurse  and 
a mother  without  a husband — these  are  the  witnesses  who  come 
before  you.  I say  nothing  of  conspiracies  or  of  families,  but  I 
do  have  the  honor  to  say  to  you  for  the  rights  of  my  client,  in 
regard  to  evidence  so  delicate,  requiring  to  be  weighed  and 
handled  with  such  accuracy  and  care,  that  it  is  a body  of  proof 
which  should  put  it  out  of  the  consideration  of  the  jury  in  a mo- 
ment. These  witnesses  to  confession  cannot  so  much  as  bring 
a written  letter  of  my  client  to  this  case  without  mutilating  it 
as  a forger;  they  cannot  carry  a letter  to  her  husband  without 
taking  a pen  and  striking  out  eleven  lines  of  it,  and  thus  change 
the  whole  statement  into  a lie  which  she  has  never  uttered. 
Does  not  that  fact  stand  outside  of  this  case  Was  not  his 
honor,  a week  or  a fortnight  ago,  obliged  by  the  undoubted  rules 
of  law  to  reject  a letter  offered  in  evidence  by  the  counsel  on  the 
other  side,  because  it  appeared  on  the  evidence  addressed  to  the 
court,  that  one  of  the  leading  witnesses  had  by  mutilation  turned 
the  whole  letter  into  a falsehood,  and  poisoned  her  own  proofs  at 
the  very  source  ? Are  they  witnesses  to  be  trusted  with  the  report 
of  evidence  by  words  ? Are  they  witnesses  to  remember  words 
where  everything  may  depend  upon  the  exact  expression,  upon 
the  order  of  the  language,  upon  dropping  an  epithet  here  and  in- 
serting an  epithet  there,  by  which  the  guilt  of  adultery  is  con- 
fessed ? Is  this  a body  of  witnesses  that  are  to  be  trusted  to  report 
words,  that  are  the  issues  of  life,  with  certainty  and  accuracy  ? I 
submit  that,  on  the  outside  of  it,  the  whole  case  of  confession  to  be 
listened  to  by  this  jury,  is  a conclusive  and  rational  distrust  which 
would  leave  my  client  in  no  fear  at  all  of  the  result.  Here  is  a man 
that  cannot  be  trusted  to  carry  ten  bushels  of  yellow  flat  cord 
across  the  city  for  fear  that  he  would  steal  half  of  it;  who  cannot 
be  trusted  to  take  a hat  full  of  uncounted  bills  to  New  York.  A 
man  who  has  not  honesty  enough,  or  fairness  enough,  to  weigh 
the  hind  quarter  of  an  ox — shall  he  be  trusted  to  weigh  out  gold 
dust  and  dimes,  and  count  the  pulses  of  life  ? A man  not  honest 
20 


306 


SPEECH  OF  RUFUS  CHOATE 


enough,  a combination  not  honest  enough,  to  carry  a letter  without 
mutilating  it  into  a falsehood,  to  prove  words  in  which  honesty,  in- 
telligence and  fairness  may  be  entirely  omitted! 

We  come,  then,  to  this  examination  of  confession  exactly  in  this 
state  of  the  case:  It  is  a probability,  amounting  almost  to  a miracle, 
that  a confession  should  be  made  under  any  circumstances  at  all. 
Confessions  themselves  are  never  to  be  acted  upon  by  the  jury,  un- 
less they  know,  upon  their  oaths,  that  they  have  the  very  words 
spoken  in  the  sense  in  which  they  came.  They  never  can  have 
that  assurance  if  they  have  not  a clear  and  undoubting  confidence 
in  the  speaker  that  reports  them.  And  their  case  opens,  I say,  with 
this:  that  a moral  miracle  is  to  be  established  on  the  testimony  of 
confessions,  by  the  evidence  of  witnesses,  as  a body,  manifestly  and 
apparently,  undeserving  a moment’s  confidence. 

44.  Credibility  of  witnesses. — Arraignment  of  John  H. 

Coburn. 

But,  gentlemen,  we  must  go  now  into  this  miserable  detail  a little 
more  fully.  My  client  has  been  in  great  danger  of  being  ruined  by 
the  evidence  of  witnesses,  every  one  of  whom  I submit  is  worse 
than  the  other,  and  every  one  of  whom  is  less  trustworthy  than  the 
other.  And  it  becomes,  therefore,  my  painful  duty  to  ask  your  at- 
tention ror  a few  moments  on  the  evidence  to  some  of  these  grounds 
on  which  the  law  declares  it  to  be  your  duty  to  lay  the  evidence 
aside.  I hope  you  know  me  too  well,  by  this  time,  gentlemen,  at 
any  rate,  if  not  it  is  too  late  to  make  professions  about  it,  to  think 
that  I have  any  pleasure  in  railing  against  witnesses;  that  I expect 
to  gain  anything  in  the  least  degree  by  mere  sarcasm  against  wit- 
nesses; that  I do  not  recognize  in  the  fullest  manner  the  general 
presumption  of  the  law  that  a witness  means  to  speak  the  truth; 
that  I am  not,  therefore,  bound  to  show  you  on  this  proof  that,  ac- 
cording to  the  established  and  recognized  tests  by  which  the  cred- 
ibility of  evidence  is  to  be  weighed  and  appreciated,  these  wit- 
nesses are  not  entitled  to  confidence. 

If  I don’t  go  to  that  extent,  do  not  hear  me;  if  I do  not  go  to 
that  extent,  I give  my  eloquent  friend  leave  to  reply  that  I have 
brought  a mere  railing  accusation.  If  I shall  show  you,  according 
to  those  standards  which  the  law  has  provided  to  discriminate  be- 
tween truth  and  falsehood,  between  trustworthiness  and  untrust- 
worthiness, that  these  witnesses  are  not  entitled  to  the  full  and  un- 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


307 


doubting  confidence  of  the  jury,  I then  demand  of  you,  on  your 
oaths,  gentlemen,  that  you  disbelieve  every  one  of  them. 

I may  be  permitted,  in  this  same  connection,  to  repeat  a remark 
I made  yesterday,  which  is,  that  somebody  or  another  in  this  case 
has  perjured  himself.  It  is  not  a vague,  a general  charge  of  per- 
jury, to  be  made  out  by  me  against  the  other  side;  it  is  a call  on 
the  jury  to  choose  and  say,  according  to  recognized  tests  of  cred- 
ibility by  which  the  credit  of  witnesses  is  to  be  weighed  in  a court 
of  law,  which  of  the  witnesses  they  will  believe  and  which  they  will 
not  believe. 

I begin,  therefore,  with  the  foundation  witness  in  this  case,  John 
H.  Coburn,  and  I respectfully  submit  to  you,  that,  tried  by  every 
test  of  credibility  which  the  law  recognizes,  on  your  oaths  you  are 
bound  to  disbelieve  him.  It  is  not  that  a laugh  can  be  raised 
against  Coburn  or  his  testimony — that  is  nothing;  it  is  that,  accord- 
ing to  those  tests  which  are  founded  on  the  longest  and  widest  ex- 
perience the  law  deems  satisfactory,  to  show  whether  a jury  can 
safely  believe  or  not,  he  is  not  to  be  believed.  I submit,  then,  that 
John  H.  Coburn  is  not  an  honest  man,  and  is  not,  therefore,  en- 
titled to  be  heard  in  so  delicate  a work  as  bringing  every  word  my 
client  spoke  on  that  evening  to  her  husband;  he  is  not  an  honest 
man,  and  I put  it  on  your  solemn  oath  to  you,  that  there  is  not  a 
man  on  that  jury  who,  on  the  exhibition  of  John  H.  Coburn, 
would  entrust  him  to  carry  a bundle  worth  five  dollars  from  this 
court-house  to  the  depot.  There  is  not  a man  of  you  who  would 
take  him  into  your  service  for  any  wages  or  for  no  wages;  there  is 
not  a man  of  you  who  would  have  his  own  life,  his  own  character, 
his  own  good  name,  still  less  the  life  of  his  child  or  the  good  name 
of  his  child,  to  rest  on  the  tongue  of  that  witness  for  a moment. 
How  does  he  come  into  this  transaction  at  all  ? I will  tell  you  ex- 
actly. He  found  out  very  well  that  Mr.  Gove  was  extremely  exer- 
cised on  the  subject  of  this  attack  upon  his  daughter;  he  found  that 
this  father,  alarmed  and  apprehensive,  receiving  anonymous  letters, 
his  nights  made  sleepless,  his  fears  becoming  his  master,  was  look- 
ing for  and  fearing  evidence  in  every  direction;  and  says  Coburn 
to  himself:  ‘‘I  will  have  something  of  this;  I will  make  something 
out  of  that,  or  my  name’s  not  John  H.  Coburn,  nor  John  S.  Perkins, 
nor  John  S.  ‘Serkins.’  ” Here  he  found  the  tenderest  sensibilities 
of  the  human  heart  tortured.  I will  not  call,  as  my  learned  friend 
did  the  other  day,  Mr.  Gove  an  “old  fool,”  but  he  was  an  old 
parent  tormented  by  his  heart’s  love,  ready  in  a moment  to  believe 


308 


SPEECH  OF  RUFUS  CHOATE 


everything,  ready  to  run  to  the  fortune  teller,  ready  to  take  counsel 
with  dreams  when  his  anodyne  would  give  him  a dream  to  consult. 
And  says  he:  “I  will  have  a jacket  and  trowsers  out  of  this  busi- 
ness; I see  pantaloons  there;  I will  have  a game  of  billiards  and  a 
suit  of  clothes,  or  I am  nobody.”  That  is  the  way  he  comes  into 
the  case.  He  comes  and  tells  Mr.  Gove  the  most  treacherous, 
beastly  falsehood  by  which  an  exercised,  and  tender,  and  apprehen- 
sive heart  and  imagination  can  be  solicited  and  imposed  upon. 
Says  he:  “I  was  in  the  court-house  the  other  day,  very  much  ab- 
sorbed in  the  trial  of  the  cause,  and  somebody  whispered  in  my  ear 
that  one  John  Simpson  saw  these  people  commit  adultery  out  in 
Brighton.”  “Now,”  says  he,  “ I don’t  think  John  Simpson  will 
stick  to  that;  I don’t  know  that  it  is  true,  but  if  you  will  furnish 
me  money  enough  I will  go  and  find  John  Simpson,  and  he  can  be 
brought  to  see  whether  it  is  true  or  not.”  Every  word  of  that  was 
as  black  a lie  as  if  it  had  been  uttered  by  four  pirates.  He  never 
had  heard  a word  in  the  court-house  about  John  Simpson;  there 
was  no  such  man  as  John  Simpson;  the  whole  is  a pure  and  sheer 
coinage  of  his  own  bad  heart  to  practice  upon  this  father  and  fur- 
nish himself  with  the  miserable  means  of  a night  or  two’s  dissipa- 
tion in  Providence,  and,  a suit  of  clothes  that  he  had  not  credit  for 
at  a second-hand  shop.  It  is  a sheer  fabrication — there  is  no  such 
man  as  John  Simpson  on  the  face  of  the  earth;  if  there  is,  now  is 
his  time,  now  is  his  last  time;  I call  for  John  Simpson,  out  of  this 
court  or  out  of  this  community,  to  show  his  head;  aye,  or  any 
human  being  that  ever  heard  of  him  in  his  life.  It  would  not  be 
extraordinary  if,  looking  over  the  directories  of  ten  thousand  cities, 
States  and  kingdoms,  you  might  find  such  a man;  but  that  John 
Coburn  ever  heard  of  such  a name,  that  the  name  of  such  a man 
was  ever  reported  to  him  in  his  life,  that  he  believed  for  an  instant 
he  had  any  such  testimony  to  give,  that  it  was  anything  but  down- 
right scandal  and  falsehood — for  which,  if  I was  not  in  a court-house 
and  was  not  responsible  to  the  law,  I should  say  a horsewhip  was 
the  remedy  and  not  the  State  prison — is  preposterous.  No  such 
man  ever  existed.  Why  do  I say  this  ? Does  not  Coburn  come 
here  and  say  somebody  told  him  about  Simpson  ? Yes;  but  who 
told  him  ? Do  we  rely  on  what  Coburn  heard  ? Here  he  is:  a 
little  money,  and  he  who  agreed  to  go  down  and  make  that  report 
through  the  telegraph  will  swear  to  it  just  as  solemnly  as  he  has 
done  it  on  the  stand  ? Do  you  believe  him  on  the  stand  on  his 
oath,  or  because  you  believe  the  principle  of  veracity  is  there  ? I 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


309 


hope  the  solemnity  of  an  oath  will  never  be  dispensed  with.  I be- 
lieve it  is  not  likely  to  be;  but  I am  bound  to  regard  it  as  a foolish 
and  idle  ceremony  if  it  is  taken  by  a heart  and  head  that  does  not 
recognize  out  of  doors  the  principle  of  truth.  I say  once  more, 
that  you  have  no  more  evidence  of  the  existence  of  John  Simpson 
than  you  have  that  Coburn  met  him  at  Providence  and  was  about 
putting  him  over  the  wires  when  he  wanted  him  for  evidence.  He 
lied  then  for  money;  he  may  now  lie  for  malignity  and  consist- 
ency. There  is  not,  therefore,  a title  of  evidence,  and  I call  on 
you  who  are  charged  with  the  administration  of  justice  in  this  case, 
who  should  know  by  this  time  that  our  rights  are  only  as  our 
proofs — and  that  you  don’t  own  your  house  any  more  than  I own  it 
but  upon  evidence — that  you  have  no  right  to  your  life  or  good 
name,  no  right  to  entertain  a belief  in  the  good  name  of  your  wife 
or  child  in  law,  but  according  to  the  proofs  by  which  the  law  is  ad- 
ministered— I call  upon  you  here  and  now  to  say,  this  man  is  a 
rogue,  a liar,  a forger  of  false  telegraphic  communications.  A 
party  comes  into  this  case  for  the  purpose  of  making  money  by 
falsehood;  therefore  he  is  to  be  laid  entirely  out  of  the  considera- 
tion of  the  jury.  Do  you  suppose  that  anybody  whispered  to  him 
in  the  court-house  about  John  Simpson?  Next  to  John  Simpson, 
I should  like  to  see  the  man  who  made  the  whispered  communica- 
tion in  the  court-house.  He  hadn’t  the  curiosity  to  look  over  his 
shoulder,  so  absorbed  was  he  in  the  proceedings;  somebody  whis- 
pered in  his  ear,  “ Simpson  saw  all  this  at  Brighton,”  and  he  never 
looked  over  his  shoulder  to  see  who  it  was.  I would  like  to  know 
if  he  thought  he  was  a man  with  a “ venerable  gray  beard,”  whether 
he  was  all  right  about  the  feet.  He  should  be  suspicious  of  that,  I 
should  think  — whether  there  was  nothing  cloven  anywhere — and  to 
be  quite  sure  whether  it  was  not  the  suggestion  of  the  devil  himself 
or  his  own  bad  heart.  Never  looked  over  his  shoulder  to  see  the 
man!  If  the  person  who  gave  that  information  is  within  the  sound 
of  my  voice  to-day,  let  me  tell  him  now  is  his  time,  and  that  he 
would  bring  a hundred  times  more  than  he  was  probably  ever  worth 
in  his  life  if  he  would  show  his  head.  There  never  was  such  a 
communication;  the  whole  was  simply  false,  and  you  have  no 
doubt  of  it  as  it  stands  before  you. 

Gentlemen,  you  have  as  little  pleasure  as  I have — and  I have 
little  pleasure  in  remarking  upon  any  human  being,  who,  upon  the 
responsibility  of  his  oath,  has  given  his  testimony.  But  we  are 
here  to  defend  a great  right  in  a court  of  law,  and  upon  the  proofs 


310 


SPEECH  OF  RUFUS  CHOATE 


it  would  be  a mistake  of  duty  if  we  did  not  follow  this  matter  up,, 
and  hunt  up  to  the  whole  extent  the  character  of  this  witness.  1 
say  you  do  not  know  whether  he  tells  the  truth,  because  he  lied 
down  there;  and  didn’t  he  lie  here,  and  didn’t  he  come  up  to  the 
Tremont  and  the  Parker  House  and  book  himself  with  a false  name 
— foi  a charge  which  remained  unliquidated,  for  all  he  knows — 
and  then  send  down  a communication  in  the  name  of  John  Simp- 
son, to  bring  this  poor,  credulous,  terrified  heart  to  a hotel  to  be 
cheated  ? Is  there  a man  who  doubts  that  he  had  some  scoundrel 
whom  it  was  intended  to  pass  off  to  Mr.  Gove  as  this  Simpson, 
who  was  willing  to  declare  to  the  falsity  of  the  charge  ? Didn’t 
he  twice  by  writing  declare  that  Simpson  was  there,  and  wasn’t  it  a 
palpable  and  repeated  lie  ? And  this  man  to  save  his  head  and 
conscience  and  sacrifice  his  heart.  He  is  so  malignant  a creature 
that  if  the  mere  joke  of  this  exquisite  falsehood  should  bring  this 
father  up  there,  merely  to  give  him  the  trouble  of  walking  to  the 
hotel  and  an  additional  walk  upstairs — no,  I give  John  H.  Coburn 
credit  for  not  quite  so  much  malignity  as  this;  and  I have  reason 
to  suppose  that  if  it  was  not  for  a little  money  to  play  billiards  with 
and  a suit  of  new  clothes,  he  would  hardly  go  so  far  as  that.  Prac- 
tice a joke  under  those  circumstances!  Is  this  the  character  of 
Coburn  ? Why,  he  admitted  all  this  falsehood  on  the  stand  in  such 
a winning,  ingenious  and  loving  way — that  he  was  a great  rogue 
and  liar,  and  had  been  everywhere,  that  we  were  almost  attracted 
to  him.  It  is,  therefore,  fit  and  proper  we  should  know  that  this 
winning  confession  of  Coburn  on  the  stand  was  not  quite  so  volun- 
tary after  all,  but  if  it  becomes  necessary  to  bring  another  incident 
into  the  trial,  he  is  ready  to  furnish  it. 

This  Coburn,  about  six  days  ago,  was  attacked  by  a very  bad 
erysipelas  in  his  ankle.  I do  not  wonder  at  that;  after  his  five 
hours’  examination  on  that  stand  I think  he  might  get  it.  But  he 
was  attacked  with  a very  bad  erysipelas  in  his  foot  or  ankle.  In 
my  humble  judgment,  it  was  an  erysipelas  of  apprehension  about 
coming  into  the  court-house  to  testify  under  the  eye  of  the  court 
and  jury.  But  he  was  attacked,  and  accordingly  we  sent  a couple 
of  eminent  physicians,  Drs.  Dana  and  Durant,  up  to  see  what  they 
could  do  for  him,  and  they  put  him  through  a course  of  warm 
water  or  composition  powder,  or  one  thing  or  another,  until  they 
cured  the  erysipelas  beyond  all  doubt,  gentlemen.  They  killed  the 
witness  and  they  cured  the  patient.  So  the  man  came  upon  the 
stand,  and  admitted  he  sent  this  communication  by  telegraph,  and 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


311 


the  message  from  the  Parker  and  Tremont.  He  swore  forty  times 
very  deliberately  that  he  never  wrote  one  of  them — deliberately  and 
repeatedly  over  and  over  again,  and  it  was  not  till  my  friend,  the 
Doctor  here,  had  turned  that  screw  about  a hundred  times,  with 
from  forty  to  fifty  interrogations,  that  he  was  beaten  out  of  one 
covert  into  another,  from  another  into  another,  until  at  last  he  was 
obliged  to  confess,  although  he  began  with  most  peremptorily  deny- 
ing it  altogether,  that  he  sent  the  telegraph  and  wrote  the  forged 
communication  from  the  Tremont  and  Parker  House. 

That  deposition  has  been  read  to  you,  gentlemen,  and  perhaps 
it  may  be  within  your  recollection,  and  I will  not  take  a great  deal 
of  time  to  verify  what  I have  said.  I do  maintain — and  I call  upon 
my  brother  who  was  present  and  who  can  tell  whether  what  I say 
is  exactly  true  or  not — I call  your  attention  to  the  fact,  that  instead 
of  then  and  there  admitting  he  recollected  it  in  the  prompt  manner 
he  did  on  the  stand,  he  meant  to  lie  it  through  and  deny  it,  and  he 
did  deny  again  and  again  in  the  most  deliberate,  positive  and  per- 
emptory terms  that  he  sent  the  telegraph  or  sent  the  message. 
And  his  honor  will  instruct  you — and  I ask  the  court  for  that  in- 
struction— that  if  you  found  him  then  and  there  intentionally  utter- 
ing a willful  and  deliberate  falsehood,  you  will  not  look  at  his  testi- 
mony, you  will  not  weigh  it,  you  will  not  remember  that  he  has 
testified  in  the  case.  You  will  throw  him  out  of  view  and  put  the 
merits  of  the  case  upon  testimony  that  is  credible. 

Here  Mr.  Choate  analyzed  Coburn’s  testimony  in  detail  to  show  that  he  was 
unworthy  of  belief.  He  then  continued  : 

Can  I,  gentlemen  of  the  jury,  possibly  pursue  the  detail  of  such 
an  examination  as  that  ? I ask  you,  as  you  value  your  rights,  that 
you  instantly,  if  you  take  the  rule  which  the  court  will  unquestion- 
ably prescribe  to  you,  if  the  witness  has  intentionally  falsified  in 
any  one  thing,  he  is  to  be  taken  to  be  false  in  all  things.  He  may 
be  innocently  mistaken  in  one  case,  and  yet  you  may  give  him 
credit  in  another  part  of  the  case,  but  the  moment  that  you  find 
him  deliberately  falsifying,  his  opinion  is  of  no  consequence,  it  has 
no  meaning,  and  he  is  regularly  laid  out,  and  there  is  an  end  of 
him,  and  the  case  is  thenceforward  to  go  on  without  him.  The 
only  escape  for  this  man  is  for  him  to  say,  that  he  goes  to  Provi- 
dence and  telegraphs  these  falsehoods;  comes  back  to  Boston  and 
hires  two  rooms  at  different  hotels,  under  false  names;  causes  false 
letters  to  be  sent  under  false  names,  enters  his  own  name  falsely— 


312 


SPEECH  OF  RUFUS  CHOATE 


and  that  transaction  had  entirely  faded  from  his  memory— and 
therefore  he  could  not  recollect  it.  I say  it  would  be  to  trifle 
with  the  oaths  of  the  jurors,  with  the  administration  of  the  law,  the 
rights  of  the  parties,  to  give  the  least  degree  of  credit  to  such  an 
explanation  as  that.  I submit  to  you,  therefore,  there  is  an  end  to 
the  witness  John  H.  Coburn,  and  there  is  no  testimony  to  that 
hideous  confession  which  he  comes  here  to  report — none  whatever. 
It  is  not  sworn  to,  there  was  no  confession  to  the  judgment  of  the 
jury  under  the  subtle  rules  of  law.  Do  you  not  all  see  that  in  the 
course  of  this  argument  I have  carefully  avoided  all  mere  profes- 
sional raillery  at  the  witness  ? I am  bringing  him  up  to  the  golden 
tests  and  standards  by  which  the  law  weighs  proof,  or  the  assayer 
weighs  gold.  I am  helping  you  to  see  him  by  the  light  of  the  rule 
of  law,  and  I cannot  allow  you  for  a moment  to  suppose  that  I am 
indulging  in  a professional  habit  of  abusing  witnesses  when  I am 
simply  declaring  to  you — with  all  truth  and  soberness,  under  my 
responsibility  to  my  profession  and  my  oath  of  office,  and  with  the 
sanction  of  this  bench— the  great  rule  of  law  by  which  the  credi- 
bility of  evidence  is  to  be  passed  on;  and  I declare  the  law  to  be, 
if  you  find  a witness  to  have  sworn  deliberately  to  a falsehood, 
knowing  and  believing  it  to  be  a falsehood,  that  he  is  no  longer  a 
witness,  and  on  this  ground  I submit  that  the  testimony  of  John  H. 
Coburn  is  not  to  engage  your  attention  for  a moment.  There  is  a 
great  deal  of  commentary  that  might  be  made  on  this,  a great  deal 
tending  to  show  the  utter  incredibility  of  the  witness  to  the  jury, 
with  which  I will  not  detain  you.  He  is  laid  out,  and  is  to  be 
viewed  as  a discarded,  false  and  perjured  witness. 

Here  Mr.  Choate  went  on  to  point  out  particular  instances  and  portions  of 
the  testimony  which  he  argued  were  absolutely  false.  He  continued  : 

45.  The  husband’s  conduct  a refutation  of  Coburn’s 

EVIDENCE. 

There  is  one  answer  to  this  man’s  testimony,  which  puts  an  end 
to  him  on  this  case,  and  I submit  that  we  gain  on  the  merits  of  our 
own  case  by  this  commenting  on  the  worthlessness  of  the  evidence 
offered  by  the  libellant,  and  I answer  this  story  that  the  conduct  of 
Dalton  that  night,  as  we  have  it  revealed  to  us  by  credible  testi- 
mony in  this  case,  gives  this  story  to  the  hissing  and  contempt 
w'hich  it  deserves  from  every  intelligent  man. 

I ask  you  to  look  at  the  conduct  of  Dalton;  take  the  unques- 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


313 


tionable  circumstances,  then  all  the  positive  testimony;  take  the 
beautiful  letter  in  which  the  next  morning  she  breathed  out  her 
expectation  of  that  new  life  of  promise  resulting  from  the  inter- 
view, and  I ask  if  you  believe  for  one  single  moment  that  such  a 
hideous  communication  was  made.  Remember  that  down  to  that 
time,  even  after  Dalton  left  the  jail,  he  declared  that  he  believed 
she  was  innocent,  that  he  loved  and  trusted  her,  and  wished  to 
God  that  he  could  trust  her  completely.  Remember  that  down  to 
that  night,  on  her  oath,  with  her  hand  on  the  Bible,  and  in  the 
pains  of  the  threatened  miscarriage,  she  had  declared  herself  to  be 
innocent;  and  remember,  that  she  then  comes  into  his  presence  to 
play  her  last  card  for  his  heart,  and  then,  according  to  this  man’s 
testimony,  makes  such  a confession.  I put  it  to  you  that,  exasper- 
ated as  Dalton  was,  hoping,  yet  fearing,  manifestly  determined  to 
fly  at  once,  if  the  evidence  of  her  guilt  should  come  from  her  lips, 
would  he  not  have  started  from  his  feet  at  such  a declaration,  and 
cried,  “Oh!  ruin!  ruin!”  and  fled  from  the  door? 

You  are  soon  to  be  appealed  to  to  give  a divorce,  because  those 
sensibilities  which  are  respected  and  which  are  to  be  religiously 
cared  for,  these  susceptibilities  of  the  husband  have  been  out- 
raged. 

Try  him,  then,  as  a husband;  try  him  on  the  supposition  that 
he  has  those  sensibilities  and  feels  them  keenly,  and  then  give  him 
credit  for  this  character.  I have  to  ask  you,  if  one  man  of  you 
doubts,  on  hearing  such  a communication  from  his  wife,  he  would 
have  exclaimed:  “May  God  forgive  you,  I cannot!  All  is  over 
now!  ” and  have  left  her  forever.  There  is  not  a husband  on  the 
panel  that  would  not  have  done  it;  nor  a husband  who  recognizes 
the  marriage  tie  on  the  face  of  the  earth  who  would  not  have  done 
it.  Yet  does  John  H.  Coburn  hear  him  utter  one  word  ? Not  one. 
He  seems  very  desirous  of  knowing  what  Fanny  has  been  doing. 
But  is  that  all  ? No,  gentlemen.  By  all  the  admitted  testimony  of 
this  case  coming  to  us  by  the  witnesses  for  the  libellant,  and  therefore 
open  to  no  criticism  from  them,  the  doors  are  softly  drawn  to  and 
locked,  and  there  they  are  for  two  hours  and  a half — there  they 
would  have  been  till  daylight  if  this  same  John  H.  Coburn  had  not 
knocked  at  the  door  and  said  it  was  nine  o’clock,  and  asked  them 
if  they  were  aware  of  the  lateness  of  the  hour.  What  was  he  doing 
there?  How  is  the  confession  just  then  made  for  the  first  time? 
What  has  become  of  that  ? I submit  that  it  is  too  clear  for  a 
moment’s  controversy,  that  the  conversation  began  with  the  door 


314: 


SPEECH  OF  RUFUS  CHOATE 


open,  and  was  the  free,  full,  heart-breaking  revelation  of  actual 
wrong,  and  an  asseveration  of  actual  innocence;  that  it  was  full  of 
sorrow,  grief  and  earnest  pathos  on  her  part;  that  she  at  last  caused 
him  to  believe  the  truth,  and  then  the  door  was  closed,  and  then 
and  there  she  gave  her  love  to  her  husband.  I have  adverted  to 
this  more  than  once.  You  may  take  it  as  coming  from  my  client, 
or  on  my  suggestion,  as  you  please.  In  that  sweet  recognition  they 
spent  two  hours,  two  hours  and  a half.  He  was  satisfied  that  there 
had  been  nothing  but  imprudence,  and  no  guilt;  and  in  that  sweet 
moment  of  reconciliation,  after  an  absence  of  tv/o  months — do 
not  be  quite  sure  that  he  did  not  then  and  there  give  her  all  that  a 
husband  can;  whether  he  did  so  or  not,  it  is  entirely  immaterial  to 
my  argument,  which  is,  that  his  conduct  was  utterly  and  instantly 
a decisive  refutation  of  Coburn’s  story  about  the  confession.  I go 
further,  and  show  you,  by  a body  of  positive  and  circumstantial 
evidence,  that  they  there  made  a provisional  arrangement  for  their 
troubled  and  yet  possible  future.  They  fell  into  an  arrangement, 
and  although  he  could  not  live  with  her  openly  until  the  sentence 
was  imposed,  yet  he  was  entirely  ready  to  do  everything  for  his 
wife,  and  then  and  there  commenced  arrangements  for  their 
troubled  future;  and  I submit  it  to  you,  it  was  agreed  that  they 
should  meet  the  next  Thursday  night  to  mature  their  arrangements, 
when  they  should  lay  out  a scheme  of  life  for  the  future. 

Remember,  in  the  next  place,  that  Edward  O.  Coburn  admitted, 
that  when  they  were  going  home,  that  she  said  she  felt  better  now 
— not  because  she  had  made  a clean  breast  of  guilt,  but  because 
she  expected  to  meet  him  the  next  Thursday  night. 

46.  The  mutilated  letter. 

The  next  piece  of  evidence  is  that  mutilated  letter;  that  elo* 
quent  orator,  that  truthful  and  decisive  witness — the  mutilated  let- 
ter. They  bring  it  and  offer  it  as  a letter  written  by  her  the  next 
morning  after  the  transaction,  and  they  do  not  dare  lay  it  before 
you  without  first  erasing  eleven  lines,  which,  though  incapable  of 
being  fully  read,  clearly  show  that  this  poor  thing  was  then  and 
there  making  provision  for  every  contingency  of  this  meeting  on 
the  next  Thursday  night.  They  found  that  she  was  making  too 
strong  a point  of  it,  in  taking  too  much  pains  that  nothing  should 
prevent  the  meeting,  and  so  they  struck  out  a portion  of  it  I sub- 
mit that  you  take  a microscope  of  a hundred  horse  power,  ?r*d  you 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


315 


will  find  a meaning  in  the  erasure,  and  will  see  that  it  is  a clear 
recognition  of  the  arrangement  for  the  proposed  meeting;  and  if 
you  cannot  find  it  in  this  way,  I think  you  will  do  so  by  your 
reason. 

Here  Mr.  Choate  showed  from  the  evidence  and  Mrs.  Dalton’s  letters  to  her 
husband,  that  at  their  meeting,  after  she  had  told  him  everything,  he  promised 
to  live  with  her,  and  was  prevented  by  his  family  from  doing  so.  That  the  al- 
leged confessions,  even  if  true,  revealed  no  crime,  but  the  evidence,  on  the  con- 
trary, disclosed  that  plaintiff  after  all  believed  his  wife  innocent.  Mr.  Choate 
next  reviewed  the  testimony  of  Edward  O.  Coburn  and  Mary  Hunter  at  great 
length,  to  show,  first,  that  it  was  false,  and,  second,  that,  even  if  any  part  of  it 
were  true,  it  failed  to  establish  the  confession  of  adultery  sought  to  be  proved  by 
plaintiff.  He  then  continued  : 

47.  Edward  O.  Coburn’s  story  of  the  cake  and  wine  an 

INVENTION. 

This  Mr.  Coburn  began  to  find  after  a time  that  his  excuse  of 
standing  at  a window  would  not  quite  answer  the  purpose,  and  he 
began  to  think,  under  my  brother  Durant’s  cross-examination,  that, 
as  the  excuse  of  standing  at  the  window  might  perhaps  be  suffi- 
ciently explained  and  deemed  to  be  adequate,  it  would  be  well  for 
him  to  volunteer  to  add  to  that  excuse  that  she  had  been  taking  a 
little  cake  and  wine,  and  probably  that  was  the  reason.  Mark  the 
hypocritical  malignity  of  that  testimony.  He  had  stated  before 
that  she  had  been  surprised  in  an  unexpected  position,  and  that 
she  resisted  the  moment  she  found  she  was  surprised.  He  per- 
ceived that  that  was  a perfect  defense  everywhere;  he  therefore 
thought  he  would  give  her  a treat  of  a little  cake  and  wine  of  his 
own.  It  was  the  cake,  the  wine,  the  champagne,  which  was  to  ac- 
count for  it;  he  had  not  said  a word  about  taking  cake,  or  wine,  or 
champagne — not  a word;  the  whole  of  it  was  a sudden,  extem- 
poraneous, hypocritical,  malignant  invention  of  the  witness  to  color, 
change,  qualify  and  turn  to  falsehood  his  whole  story  upon  the 
stand,  which  had  attributed  to  her  the  excuse  of  being  surprised  at 
the  looking  out  of  a window,  resisting  in  a moment,  her  virtue  never 
yielding.  He  says  to  himself:  “ That  is  a complete  and  perfect  de- 
fense, but  if  she  were  to  be  brought  under  the  influence  of  a stimu- 
lant, wine  or  champagne,  she  might  have  yielded  to  that  surprise;” 
and  so  he  finds  his  occasion,  and  treats  her  at  his  own  expense,  as 
it  costs  him  nothing — to  cake  and  wine  and  champagne  upon  the 
stand.  I submit  to  you,  gentlemen,  whether  it  was  not  as  sheer,  as 


316 


SPEECH  OF  RUFUS  CHOATE 


malignant,  as  hypocritical  a falsehood  as  has  occurred  in  the  testi- 
mony of  any  witness  in  this  whole  case.  I am  inclined  to  think 
that  Mary  Hunter’s  story  came  rather  suddenly  across  his  memory, 
and  so  he  volunteered  it,  although  he  was  compelled  to  admit  that 
she  had  herself  said  not  a single  syllable  about  it. 

I put  it  to  you  again,  gentlemen,  with  great  earnestness,  that  if 
the  testimony  of  this  witness  was  entirely  trustworthy,  making  rea- 
sonable allowance  for  the  difficulty  of  reporting  language,  the  state 
of  the  case  which  he  makes  out  against  her  is  no  more  than  can  be 
made  out  against  any  young  daughter  of  Boston,  pure  as  the  flakes 
of  snow  when  it  falls,  standing  at  the  Athenaeum  and  looking  out 
upon  a graveyard,  upon  whom  an  intoxicated  rowdy  should  sud- 
denly break  in  and  allow  his  hand  to  stray  lasciviously  upon  her 
bosom,  from  whom  instantly  she  turns,  shrieks,  bursts  into  tears 
and  falls  hysterically — not  a particle,  and  that  is  the  state  of  testi- 
mony before  you.  Is  there  anything  in  the  evidence  of  John  H. 
Coburn  which  in  the  least  degree  resembles  it  ? He  places  it  at  a 
time  when  she  is  conducting  an  earnest  expostulation  to  a com- 
plaint of  her  husband — at  a time  when  she  is  making  an  argument 
to  show  that  she  is  entitled  to  have  him  back  again;  and  I there- 
fore put  it  to  you  as  beyond  a particle  of  doubt,  that  she  means  so 
to  conduct  that  argument  as  to  make  out  a case.  Of  the  two  Co- 
burns at  confession  give  me  John  H.  Coburn,  for  he  gets  up  some- 
thing which  nobody  believes.  The  principles  of  the  two  Coburns 
remind  me  of  Pope’s  classification: 

'•  John  struts,  a perjurer,  open,  bold  and  brave. 

Ned  sneaks,  a liar,  an  exceeding  knave.’' 

That  is  the  difference  between  them  exactly.  Is  Edward  O. 
Coburn  entitled  in  the  least  degree  to  the  credit  of  the  jury  ? Need 
I say  anything  more  than  to  ask  you  whether  Edward  O.  Coburn 
is  an  honest  man  and  fit  to  be  trusted  upon  a question  of  this  im- 
portance— affecting  life,  or  character,  or  good  fame  ? 

Here  Mr.  Choate  referred  to  the  fact  that  credit  was  claimed  for  Edward  O. 
Coburn,  because  he  wanted  to  run  away  and  not  testify.  He  branded  him  as  a 
hypocrit,  and  showed  that  he  did  not  wish  to  be  questioned  about  robbing  his 
father-in-law’s  safe  as  the  reason  why  he  desired  to  absent  himself.  He  con- 
tinued: 

48.  Arraignment  of  Edward  O.  Coburn. 

There  is  a general  public  rumor  current  in  this  community  that 
a thief  is  not  an  honest  man,  and  Edward  O.  Coburn  is  a thief. 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


31T 


He  was  obliged  to  admit  under  your  eye,  that  he  took  false  or  true 
keys,  broke  into  his  father’s  safe,  and  took  all  there  was.  Of  the 
amount  he  was  not  certain,  but  it  was  about  $1,700.  He  went 
away  and  denied  it — that  is  to  be  a thief,  and  to  be  a thief  is  not 
to  be  an  honest  man.  He  who  would  steal  his  father-in-law’s 
money  is  not  to  be  believed  when  he  gives  testimony  against  his 
sister-in-law,  the  child  of  the  father-in-law.  He  is  not  an  honest 
man.  You  heard  the  explanation  that  he  attempted  to  give  here, 
and  the  malignity  and  intellectual  hypocrisy  by  which  that  explana- 
tion was  marked.  He  was  called  upon  to  admit  the  fact,  and  he 
did  so.  He  was  called  upon  for  his  reasons,  and  he  said  that  in 
consequence  of  his  irregularities  he  had  contracted  debts,  which 
he  wanted  to  pay.  He  wanted  a little  money,  and  as  some  defense 
of  himself  against  this  charge  he  said  it  was  under  the  influences  of 
certain  wild  ideas;  that  the  memory  of  this  affair  had  done  him 
great  injury.  When  he  was  asked  how  much  money  he  wanted  to 
pay  his  debts,  he  said  he  did  not  know,  but  he  took  all  there  was; 
and  then  he  went  away  and  denied  that  he  had  taken  a dollar. 
And  yet  to  put  himself  upon  this  jury — I care  nothing  about  his 
defense — as  entitled  to  some  confidence  from  the  jury,  he  under- 
takes to  account  for  taking  this  money  by  certain  wild  ideas.  How 
contemptible  a hypocrisy  is  this!  I can  very  well  understand,  from 
what  I have  read  and  what  I have  discovered,  that  a husband  sud- 
denly made  aware  or  made  to  believe  in  his  wife’s  guilt,  and  made 
jealous  by  it,  might  be  urged  in  the  tempest  to  the  murder  of  the 
adulterer,  or  to  the  murder  of  the  adulteress,  and  the  digging  of 
his  own  grave.  That  I can  understand,  for  it  is  altogether  a new 
mode  which  he  seems  to  have  taken  of  solacing  his  grief — that  of 
stealing  by  means  of  false  keys.  It  has  generally  been  considered 
a great  stroke  of  nature  in  the  poet,  where  he  represents  Othello — 
when  those  billows  were  raging  and  those  storms  blowing  in  that 
great  bosom — as  going  to  the  bed,  kissing  his  wife,  and  then  stifling 
her  to  death;  and  after  that  comes  the  superb  speech  beginning, 

Soft  now,  a word  or  two  before  we  part, 

and  he  kills  himself.  But  what  should  we  think  of  Shakespeare,  to 
adopt  Mary  Hunter’s  expression,  if  he  had  represented  Othello  as 
“blowing  off  a little,’’  in  the  first  place,  by  stealing  seventeen  or 
eighteen  hundred  dollars  of  his  father’s  money  ? It  is  hypocrisy, 
gentlemen,  and  no  truth,  no  manhood.  I submit  that  the  witness 
is  not  entitled  to  the  confidence  and  credit  of  this  jury. 


31b 


SPEECH  OF  RUFUS  CHOATE 


Here  Mr.  Choate  went  on  at  great  length  to  show  that  the  witness  testified 
falsely  from  malignant  motives.  He  continued : 

This  man  comes  here  to  report  words  and  confession  when  he 
cannot  carry  a letter  from  one  house  to  another  without  sitting 
down  and  forging  it  into  a falsehood.  He  stands  here,  let  me  say, 
in  the  judgment  of  this  court  on  the  evidence  in  this  position.  He 
receives  a letter  from  the  respondent  which  he  agrees  to  carry  to 
her  husband,  that  letter  which  was  filled  up  with  new  life  and  new 
hopes — a new  and  a dear  husband  to  live  for,  a future  opening  before 
her,  a happy  meeting  next  Thursday  which  she  is  anxious  by  all 
possible  attentions  to  secure  to  herself — and  he  cannot  bring  it  be- 
fore the  court  without  having  first  elaborately  erased  from  it  every 
word  which  goes  to  show  an  arrangement  for  such  a meeting  as 
that.  I repeat  that  such  a man  who  has  not  honesty  and  fairness 
enough  to  keep  his  hands  from  forgery,  is  not  entitled  to  bring  in 
words. 

There  is  that  beautiful  letter,  not  a word  of  confession  in  it; 
there  it  is  with  a key  at  the  end,  opening  all  its  sense,  and  he  broke 
in  and  stole  the  key — stole  the  key;  not  this  time  a key  for  the  rob- 
bery of  his  father’s  store,  but  for  the  destruction  of  the  daughter’s 
proofs.  I pray  your  judgment,  gentlemen,  that  this  is  the  end  of 
Edward  O.  Coburn. 

49.  Arraignment  of  Mary  Hunter, 

From  John  H.  Coburn  and  Edward  O.  Coburn  to  Mary  Hunter, 
whether  ascending  or  descending,  is  easy — with  or  without  the 
Latin  maxim  on  that  subject.  I believe  if  you  leave  the  two  Co- 
burns out  of  the  case,  you  will  not  be  troubled  by  Mary  Hunter. 
I submit  that  her  testimony  was  mixed  for  her  exactly  as  a man 
mixes  rum  and  water  to  drink,  and  she  drank  it.  In  that  bronze, 
strange  woman,  what  do  we  behold?  From  her  appearance  and 
her  account  of  herself  upon  the  stand,  what  do  we  know  that  would 
warrant  us  to  give  credit  to  what  she  swears  to  for  a moment  ? 
Where  she  came  from,  with  whom  she  has  lived,  what  has  been  her 
way  of  life,  who  is  the  father  of  her  child,  to  every  question  which 
my  brother  Durant  puts  under  the  settled  practice  of  the  court,  the 
only  means  by  which  perjury  of  an  unknown  stranger  can  be  de- 
tected— to  all  these  she  answers,  with  her  arms  akimbo,  “ It  is  none 
of  your  business.”  I submit  to  you,  gentlemen,  that  the  inference 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


819 


Is  inevitable,  if  she  could  truly  and  properly  answer  those  questions 
on  her  oath,  a chaste,  well  ordered  life  and  conversation,  she  would 
have  leaped  to  do  it.  She  would  have  rejoiced  at  the  opportunity; 
my  learned  brother  would  have  instructed  her,  it  would  have  been 
his  duty  to  so  instruct  her  to  take  her  earliest  opportunity  to  tell 
her  history,  perhaps  a humble  one;  and  I submit  to  you  that  no 
other  inference  can  be  made  from  her  reiterated  refusal  to  tell  us 
anything  about  herself,  than  that  she  knows  perfectly  well  that  it  is 
one  of  those  rare  cases,  but  which  sometimes  happen,  where  the 
least  said  is  soonest  mended;”  and  therefore  she  tells  us,  ‘‘it  is 
none  of  your  business,”  and  that  is  the  end.  Is  that  a ground  for 
railing  at  the  witness?  No;  but  it  is  a ground  for  saying  that  we 
do  not  know  whether  that  woman  knows  anything,  or  respects  in 
the  least  degree  the  sanctity  of  an  oath.  We  have  not  a particle  of 
evidence  that  that  foreigner  and  stranger  ever  had  a lesson  from 
the  Bible  in  her  life,  that  she  ever  heard  a word  of  counsel  from 
priest  or  minister,  that  she  ever  heard  a mass  “by  bell,  book  or 
candle,”  that  she  ever  saw  a domestic  example  of  purity,  that  she 
remembers  a father  or  mother,  that  she  had  ever  received  one 
single  lesson  or  one  single  influence  which  enables  us  to  believe 
that  she,  here  and  now,  feels  the  obligation  of  an  oath.  That  she 
is  a foreigner  is  nothing  against  her;  that,  being  a foreigner,  we 
should  naturally  inquire  something  about  her  antecedents,  was  not 
strange,  but  it  was  nothing  against  her;  and  if  then  and  there  she 
had  frankly  disclosed  them  to  us,  we  might  have  found  her  entitled 
to  belief.  But  she  buries  herself  up,  she  refuses  to  tell  you  anything; 
and  I repeat  that  you  do  not  know  whether  from  her  childhood  to 
this  hour  she  ever  had  a lesson  of  virtue  from  anybody,  ever  came 
to  understand  the  importance  of  truthfulness,  the  virtue  of  chastity 
and  the  value  of  character  and  reputation. 

She  stands  before  you  here  and  now,  gentlemen,  only  as  a wet 
nurse  and  mother,  without  a husband,  whom  she  will  not  confess, 
and  it  is  for  you  to  say,  if  standing  on  her  alone,  if  the  cause  rests 
on  her  alone,  whether  or  not  she  is  entitled  in  the  least  degree  to 
credit  by  this  jury.  The  matter  and  manner  of  her  testimony  may 
be  briefly  adverted  to,  and  with  that  I complete  all  I have  to  say 
with  regard  to  her. 

Here  Mr.  Choate  showed  that  her  evidence  about  purchasing  savin,  &c., 
was  unworthy  of  belief,  and  wholly  uncorroborated.  He  then  continued : 


320 


SPEECH  OF  RUFUS  CHOATE 


50.  All  the  letters  taken  together  show  defendant 

INNOCENT. 

I need  not,  in  the  view  I have  been  taking  of  this  case,  call  your 
attention  to  one  fact.  I apprehend  it  has  already  been  anticipated 
and  long  since  disposed  of.  That  on  reading  this  entire  series  of 
letters,  you  will  find,  everywhere,  from  first  to  last,  perhaps  strong- 
est in  the  first,  certainly  no  stronger  in  the  last,  continual  and  re- 
iterated expressions  of  remorse,  and  regret,  and  grief  by  Helen 
Dalton  for  what  she  had  done.  I do  not  believe  my  learned 
brother,  upon  a collation  of  that  series  of  letters,  will  stand  up 
here  and  contend  for  a moment,  and  say,  that  she  ever  dreamed  of 
supposing  for  a moment,  she  meant  to  confess  by  any  strong  ex- 
pression, that  she  had  committed  the  crime  of  adultery;  but,  on 
the  contrary,  I hold  it  to  be  one  of  the  best  points  in  this  case  for 
that  young  wife,  I hold  it  to  be  a satisfactory  evidence,  that  there 
is  yet  a heart  and  character  worth  cultivating  and  saving,  that  there 
is  yet  a wife  whom  Dalton  might  be  proud  and  happy  to  take  again 
to  his  bed,  that  no  strength  of  language  seems  to  herself  sufficient 
to  express  her  own  remorse  and  shame  for  what  she  has  done. 
She  knew  when  she  penned  every  one  of  those  letters,  she  knew 
perfectly  well,  from  her  conversation  with  her  husband  and  the 
Daltons  on  the  Sunday  evening  after  the  Shawmut  avenue  tragedy, 
that  he  understood  perfectly  well  that  all  her  strong  expressions,  all 
her  tears,  all  her  prayers  to  .Almighty  God  to  forgive  her  for  her 
sin,  all  her  regret  that  she  had  failed  to  make  him  happy,  and  failed 
to  be  worthy  of  him,  were  only  the  confessions  of  a pure  and  a 
chaste  heart,  that  judged  itself  more  harshly  than  God  in  his  in- 
finite mercy  will  surely  judge  it,  more  harshly  than  the  generous 
and  manly  heart  could  judge  it.  As  she  looked  back  to  that  time, 
no  language  seemed  too  strong,  no  compunction  seemed  too  severe, 
no  prayer  to  God  seemed  too  profound,  no  promise  of  a better  life 
too  warm,  too  strong,  too  heartfelt,  to  express  it  all.  And  now  I 
say,  for  my  learned  brother  to  cull  out  a single  one  of  that  series, 
and  put  it  forward  without  its  context,  by  itself,  and  call  on  you  to 
interpret  it  as  no  letter  ought  to  be  interpreted,  out  of  its  connec- 
tion, without  the  usus  loquendi  of  the  parties  themselves,  who  per- 
fectly understood  it,  and  without  which  it  could  not  be  appreciated — 
to  do  that  would  be  a cruelty  tremendous,  an  injustice  from  which  I 
think  he  would  shrink  back.  No,  gentlemen,  you  will  take  this 
series  from  first  to  last,  and  I will  take  my  chance  of  a verdict,  or 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


321 


disagreement,  as  you  sha/1  find,  that  the  strongest  and  clearest  ex- 
pressions of  compunction,  grief,  guilt,  and  sin,  shall  be  found  at 
the  beginning  of  the  series.  After  he  had  seen  them,  and  studied 
them,  and  understood  them  perfectly  well,  he  writes  her  again  and 
again  that  he  truly  loves  her,  looks  to  a happier  life  yet  with  the 
loved  one,  the  trusted  one.  I might  read  a sentence  or  two,  but 
one  is  enough,  for  she  had  clearly  and  distinctly  put  him  in  posses- 
sion of  her  mind  on  this  point.  I submit  that  the  purer  she  was, 
the  more  confident  she  felt  that  her  body  had  been  preserved  as  a 
vessel  of  honor  for  her  husband,  at  the  same  time,  the  more  dis- 
tinctly and  clearly  she  appreciated  the  deep  wrong  she  had  actu- 
ally done.  I submit  that  it  is  according  to  the  nature  of  love  that 
she  shall  even  overstate,  she  shall  exaggerate,  shall  make  more  of  it 
than  it  deserves,  even  of  that  miserable  flirtation  which  did  not 
end  in  adultery.  It  is  to  lay  herself  at  his  feet;  it  is  to  show  how 
wholly  she  feels  with  him;  it  is  to  assure  him  of  her  whole  heart 
laid  bare,  her  whole  soul  probed  to  the  bottom;  and,  therefore,  it  is 
that  you  shall  find  here  exaggerated  expressions,  which,  unless  you 
know  perfectly  well,  as  the  correspondents  themselves  must  have 
known,  their  true  signification.  I apprehend  under  the  rule  of  law 
they  must  be  subject  to  the  mildest  interpretation  which  can  be  put 
upon  them.  Here  you  have  the  key  to  the  whole,  and  thank  God, 
they  have  not  stolen  this  bar  if  they  have  stolen  the  others.  “ God 
knows  I love  you,  darling,  forgive  that  vein  of  folly,  although  I have 
sinned — yet  not  criminal;”  that  is  the  key;  that  is  the  interpreta- 
tion of  the  language.  And  thenceforward  it  is  perfectly  understood 
between  the  parties  that  when  she  says  she  has  sinned,  that  she  has 
been  wicked,  that  she  has  been  tempted,  that  the  tempter  is  in  his 
grave,  and  she  is  sorry  he  had  not  been  there  before  he  presented 
the  temptation;  it  is  all  perfectly  understood  between  them  from 
beginning  to  end.  It  is  the  most  dreadful  cruelty  and  injustice 
here  and  now  to  desert  that  perfect  understanding;  that  what  she 
meant  was:  “ I have  been  sinful  by  my  vanity;  I have  been  secret- 
ly tempted  by  the  influence  of  this  young  man  now  in  his  grave, 
and  I have  so  far  done  you  a wrong  which  I shall  acknowledge  for 
sin,  and  pray  God  while  life  lasts  to  forgive  me  for,  but  not  crime, 
dear  Frank,  not  crime  ” — the  whole  course  of  the  correspondence 
perfectly  understood  by  them — and  to  read  half-a-dozen  extracts 
from  those  letters,  to  show  much  more  strength  of  affection  and  a sin 
which  he  can  never  forgive.  It  is  hardly  necessary  to  illustrate  my 
proposition  with  regard  to  the  meaning  of  language,  the  usus  lo- 
21 


322 


SPEECH  OF  RUFUS  CHOATE 


quendi  of  the  parties  in  the  interpretation  of  a writing.  Frank, 
you  know  and  God  knows  that  when  I married  you  I was  as  pure 
as  a child  could  be,  and  I am  now.  If  you  do  not  know  it,  your 
folks  know  it.  Father  will  not  allow  his  daughter,  if  she  has  com- 
mitted a wrong  thing,  which  no  one  upholds  her  in,  to  be  treated 
thus.  Darling  Frank,  pray  our  heavenly  Father  to  forgive  me  my 
sins,  and  let  us  also  feel  that  in  a great  degree  he  has.  Frank, 
when  you  pray,  pray  that  God  will  forgive  your  erring  wife.  I 
never  expect  to  have  any  one  love  me,  I have  been  so  naughty;  but 
then  I know  Frank  will  love  me,  if  no  one  else,  won’t  you,  darling?’* 
After  that  he  writes  to  her  again  and  again  and  again:  “ My  own 
sweet  Nelly,  my  darling,  I fly  to  your  arms;  we  shall  be  happy  yet. 
Courage;  trust  your  own  affectionate  husband.’*  Then,  gentlemen, 
I submit  that  the  selection  of  a single  paragraph  from  such  a letter 
as  the  last,  written  manifestly  under  the  impression  of  the  great  joy 
the  communication  of  the  day  before  in  its  results  had  given  her, 
will  not  be  pursued,  or  if  pursued,  will  be  ineffectual  with  a candid 
jury. 

I therefore,  gentlemen,  bring  this  argument  to  a close.  Positive 
evidence  on  behalf  of  the  respondent  from  the  nature  of  the  case 
we  cannot  bring.  Sumner  is  in  his  grave;  we  cannot  bring  him. 
We  could  not  bring  in  evidence  of  his  declarations,  but  in  that 
silence  we  have  these  two  persuasive  tests:  the  testimony  of  a dying 
man  to  his  innocence — testimony  on  that  solemn  occasion  when 
men  and  women  speak  the  truth  if  they  ever  speak  it;  and  the  tes- 
timony of  Helen  Dalton,  who  declared  herself  innocent  of  this 
crime;  once  when  her  husband,  who  knew  that  she  was  to  be 
trusted,  who  knew  that  he  could  entitle  himself  to  have  the  joy  of 
belief  in  her,  proposed  to  her  to  sink  down  upon  her  knees  upon 
the  family  Bible,  and  call  upon  her  heavenly  Father  to  witness 
whether  she  spoke  the  truth,  upon  which  oath  propounded  by  her 
she  declared  herself  to  be  innocent;  and  over  again,  when  the  pains 
of  premature  delivery  came  upon  her,  when,  therefore,  she  was  in 
the  very  danger  and  peril  of  death,  in  that  state  where,  according 
to  a statute  of  law  in  this  commonwealth,  a certain  artificial  credit 
is  always  to  be  given  to  the  oath  of  a witness  declaring  her  inno- 
cence then.  We  submit  the  proof  that  from  the  testimony  in  this 
case,  she  has  been  uniformly  and  steadily  constant  in  that  decla- 
ration. 

The  charge  of  abortion  by  which  they  poisoned  your  own  minds 
for  a time,  and  the  public  mind  for  a time,  is  wholly  false  and 


ON  BEHALF  OF  HELEN  MARIA  DALTON. 


323 


wholly  disproved.  There  is  no  question  whatever  about  this.  The 
testimony  of  these  Coburns  and  Mary  Hunter,  all  three,  will  not 
weigh  a feather  for  a moment  in  your  minds.  And  then  upon 
every  thing  else,  from  one  end  of  the  case  to  the  other,  every  par- 
ticle of  credible  testimony,  you  have  the  deliberate  judgment  of  the 
best  witnesses  on  our  side. 

I leave  her  case,  therefore,  upon  this  statement,  and  respect- 
fully submit  that  for  both  their  sakes  you  will  render  a verdict 
promptly  and  joyfully  in  favor  of  Helen  Dalton — for  both  their 
sakes.  There  is  a future  for  them  both  together,  gentlemen,  I 
think;  but  if  that  be  not  so — if  it  be  that  this  matter  has  proceeded 
so  far  that  her  husband’s  affections  have  been  alienated,  and  that  a 
happy  life  in  her  case  has  become  impracticable,  yet  for  all  that, 
let  there  be  no  divorce.  For  no  levity,  no  vanity,  no  indiscretion, 
let  there  be  a divorce.  I bring  to  your  minds  the  words  of  Him 
who  spake  as  never  man  spake:  “Whosoever  putteth  away  his 
wife  ” — for  vanity,  for  coquetry,  for  levity,  for  flirtation  ? — “ whoso- 
ever putteth  away  his  wife  for  anything  short  of  adultery,  intention- 
ally, willingly  indulged,  and  that  established  by  clear,  undoubted 
and  credible  proof — whosoever  does  it,  ‘ causeth  her  to  commit 
adultery.’”  If  they  may  not  be  dismissed  then,  gentlemen,  to  live 
again  together,  for  her  sake  and  her  parents’  sustain  her;  give  her 
back  to  self-respect  and  the  assistance  of  that  public  opinion  which 
all  of  us  require. 

There  was  a time  in  the  progress  of  this  cause  when  that  father, 
unaware  of  what  might  be  produced  against  her,  or  by  what  instru- 
ments of  defense  it  would  be  necessary  here  to  protect  his  daughter’s 
honor,  set  on  foot  an  inquiry  of  recrimination  to  be  instituted 
against  the  libellant.  Information  was  brought  to  his  ears  on  which 
he  directed  a certain  inquiry;  the  result  was  communicated  to 
counsel,  and  that  result  has  been  stated  on  the  files  of  the  court. 
On  that  allegation  of  recrimination  we  have  had  occasion  to  pro- 
duce no  evidence;  it  was  contrary,  as  Mr.  Gove  has  sworn,  to  the 
wishes  of  his  daughter  from  first  to  last,  that  the  attempt  should 
be  made  at  all.  There  is,  therefore,  by  her  request — and  it  is 
gratifying  to  the  counsel  in  that  respect  to  be  able  to  indulge  that 
request — not  a tittle  of  evidence  upon  which  it  can  ever  be  predi- 
cated that  he  was  guilty;  as  to  that  he  must  be  found  to  be  inno- 
cent. Permit  me  to  say  that  she  would  have  thought  it  the  last 
drop  in  this  bitterest  cup  if  her  own  frivolities  and  vanities  had 
done  anything  to  tempt  or  even  to  bring  into  suspicion  the  chastity 


324 


SPEECH  OF  RUFUS  CHOATE. 


of  her  husband.  It  would  have  been  the  bitterest  drop  in  her  x:up. 
She  would  say  by  me,  as  she  said  to  him  in  her  last  letter  to  Frank. 
“You  have  done  all  you  can  to  disgrace  me,  but  no  matter  now — * 
I will  not  blame  you.  You  are  my  husband  for  the  present;  I will 
not  talk  against  you  nor  say  aught  that  can  make  you  unhappy. 
Wishing  you  much  happiness  and  peace  with  much  love,  if  you  will 
accept  it,  I remain,  your  wife.’’  So  may  she  remain  until  that  one 
of  them  to  whom  it  is  appointed  first  to  die,  shall  find  the  peace  of 
the  grave. 

I thank  you  for  your  kind  indulgence  and  leave  the  case  in 
your  hands. 


It  is  perhaps  proper  here  to  state,  that  when  this  speech  was  delivered,  re- 
porters did  not  always  possess  the  skill  they  now  have.  Mr.  Choate,  when  ex- 
cited and  in  the  full  tide  of  his  argument,  spoke  with  great  rapidity — a vehement 
and  onward  rush  of  thoughts.  It  was,  therefore,  difficult,  often  impossible,  to 
take  down  fully  and  accurately  all  he  said;  and  Professor  Brown,  in  speaking  of 
this  argument,  remarks,  that  the  mere  reading  of  it  can  give  but  a feeble  idea  of 
its  beauty  and  cogency.  A reporter  once  remarked,  he  would  as  soon  undertake 
to  report  “chain-lightning”  It  is  related  of  Mr.  Choate,  that  after  reading  one 
of  his  addresses,  a friend  asked  him  whether  it  had  been  correctly  given.  The 
reply  was,  “not  verbally,  not  verbally,  but  the  general  nonsense  of  the  thing 
they  have  got.” 

The  effect  of  the  powerful  appeal  in  the  Dalton  Case  went  farther  than  the 
jury  box.  It  brought  conviction  in  a strange  direction.  Mr.  Choate,  we  have 
reason  to  believe,  convinced  the  plaintiff.  It  is  certain,  at  all  events,  that  soon 
after  the  trial  Dalton  began  paying  attentions  to  his  wife,  sending  her  bouquets, 
and  exhibiting  other  tokens  of  his  affection.  Both  shortly  left  Boston,  were  re- 
united, and  lived  together  in  harmony. 


ARGUMENT  OF  EDWIN  M.  STANTON 


In  Defense  of  Hon.  Daniel  E.  Sickles,  Indicted  for  the 
Murder  of  Philip  Barton  Key. 

IN  THE  CRIMINAL  COURT  FOR  THE  DISTRICT  OF  COLUM- 
BIA, WASHINGTON,  D.  C,  APRIL  23d,  1859. 


Analysis  of  Me.  Stanton’s  Argument. 


I.  Homicide  defined. 

а.  Theory  of  the  defense. 

3.  Effects  of  the  crime  of  adultery  upon  the 

home  circle. — Sanctity  of  the  nuptial 
bond. 

4.  The  hallowed  relation  as  between  parent 

and  child. 

5.  The  tie  between  brother  and  sister.  ^ 

б.  The  punishment  of  adultery  under  the 

Levitical  law. 

7.  Conduct  embraced  within  the  act  of  adul- 
tery. 


8.  The  husband  legally  justified  in  slaying 

the  adulterer. 

9.  Review  of  Manning’s  case. 

10.  Slaying  the  adulterer  no  crime  under  the 

law. 

11.  The  wife’s  consent  no  qualification  of 

the  adulterer’s  guilt. 

12.  The  English  and  American  authorities 

discussed. 

13.  The  wife’s  consent  cannot  be  invoked  to 

shield  the  adulterer. 

14.  The  prisoner’s  right  to  slay  further  based 

on  the  law  of  self-defense. 


' Whether  a homicide  committed  by  a man  smarting  under  a sense  of  dis- 
honor is  murder  or  manslaughter,”  says  Mr.  Wharton  in  his  work  on  homicide, 
“ depends  upon  the  question  whether  the  killing  was  in  the  first  transport  of  pas- 
sion or  not.  In  the  latter  case  the  offense  is  murder  ; in  the  former  man- 
slaughter.” Those  not  familiar  with  legal  principles  may  regard  this  as  an  ex- 
tremely harsh  rule.  Many  will,  no  doubt,  consider  that  a man  is  not  only  blame- 
less, but  justified  in  taking  the  life  of  the  adulterer,  and  that,  in  doing  so,  he 
discharges  a duty  which  he  owes  to  the  community.  The  rule,  however,  is  a 
wise  one,  and  salutaiy  in  its  operation.  Chief  Justice  Ruffin,  of  North  Carolina, 
in  a very  able  opinion,  illustrates  the  wisdom  of  the  law  on  this  subject.  He 
says;  “ Where  a husband  only  hears  of  the  adultery  of  his  wife,  no  matter  how 
well  authenticated  the  information  may  be,  or  how  much  credence  he  may  give 
the  informer,  and  kills  either  the  wife  or  her  paramour,  he  does  it  not  upon  pres- 
ent provocation,  but  for  a past  wrong — a grievous  one,  indeed;  but  it  is  evident 
he  kills  for  revenge.  Let  it  be  considered  how  it  would  be  if  the  law  were  other- 
wise. How  remote  or  recent  must  the  offense  be  ? How  long  or  how  far  may 
the  husband  pursue  the  offender  ? If  it  happen  that  he  be  the  deluded  victim  of 
an  lago,  and,  after  all,  that  he  has  a chaste  wife,  how  is  it  to  be  then  ? These 
inquiries  suggest  the  impossibility  of  acting  on  any  rule  but  that  of  the  common 
law,  without  danger  of  imbruing  men’s  hands  in  innocent  blood,  and  certainly  of 
encouraging  proud,  headstrong  men  to  slay  others  for  vengeance,  instead  of 

[325] 


32G 


ARGUMENT  OF  EDWIN  M.  STANTON 


bringing  them  to  trial  and  punishment  by  law.”  ’ The  act  of  adultery,  therefore, 
furnishes  no  excuse  for  the  homicide.  Its  effect,  at  most,  is  to  reduce  the  grade 
of  killing  from  murder  to  manslaughter. 

It  is  only  under  the  common  law  of  England,  however,  that  the  slaying 
of  the  adulterer  caught  in  the  act,  is  regarded  as  manslaughter.  Such  kill- 
ing was  justified  by  the  laws  of  the  Greeks,  the  Romans,  the  ancient  Goths, 
and  other  nations  of  antiquity.  If  a burglar  enters  my  dwelling  to  spoil 
my  goods,  and  I kill  him,  the  authorities  all  agree  that  I am  justified.  I am 
not  guilty  of  any  offense,  because  the  circumstances  will  excuse  the  homi- 
cide. Applying  this  principle,  it  was  urged  in  the  Sickles  case,  that  if  a lib- 
ertine destroys  his  friend’s  home,  if  he  spoils  his  domestic  happiness,  ruins 
the  wife’s  chastity  and  the  mother’s  virtue,  the  husband  would  be  justified  in 
taking  his  life.  The  burglar  seeks  that  which  is  material  and  perishable.  What 
the  adulterer  destroys  is  more  precious  than  gold  or  rubies,  and  cannot  be  re- 
stored. Hon.  Edwin  M.  Stanton  discussed  the  law  upon  this  subject  in  a masterly 
manner,  and  made  perhaps  the  most  powerful  argument  that  has  ever  been  at- 
tempted upon  the  subject.  On  behalf  of  his  client  he  claimed,  that  if  such 
killing  was  manslaughter  under  the  common  law  as  it  existed  in  England,  it 
should  not  be  followed  here,  nor  declared  as  part  of  our  American  jurisprudence. 
He  urged  that  both  in  law  and  in  morals  Mr.  Sickles  was  justified  in  taking  the 
life  of  the  adulterer,  for  he  insisted  that,  in  the  eye  of  the  law,  he  slew  him  in 
the  act.  The  facts  of  the  case  are  briefly  told. 

On  Sunday  afternoon,  on  the  27th  of  February,  1859,  Sickles  shot  and  killed 
Key  in  a public  thoroughfare,  in  the  city  of  Washington.  The  night  before  the 
homicide,  he  learned  that  Key,  who  had  been  his  friend  and  companion,  had 
violated  the  sanctity  of  his  friendship  and  betrayed  his  hospitality,  and  had  been 
for  a long  time  criminally  intimate  with  Mrs.  Sickles.  The  truth  of  this  terrible 
revelation  was  confirmed  the  next  morning.  While  Mr.  Sickles  was  seated  near 
his  front  window,  he  saw  Key  drive  past  and  wave  his  handkerchief,  the  signal 
that  he  desired  to  meet  Mrs.  Sickles  away  from  the  roof  of  her  husband. 
Within  a very  few  hours  the  opportunity  presented  itself,  and  the  husband,  en- 
raged and  mortified  beyond  endurance,  shot  and  killed  the  seducer  upon  the 
public  street,  “ Key,  you  scoundrel,”  he  exclaimed,  “you  have  dishonored  my 
house;  you  must  die,”  whereupon  he  fired  three  shots,  all  of  which  took  effect 
in  the  body  of  the  victim. 

The  inquiry  before  the  court  was  not  as  to  how  far  the  accused  was 
blameless  in  the  eye  of  his  maker  for  inflicting  vengeance  upon  the  destroyer 
of  his  domestic  happiness.  However  interesting  such  a discussion  might  be 
to  the  mind  of  the  casuist,  it  did  not  necessarily  arise  before  a human  tri- 
bunal. Could  the  slayer  be  convicted  under  the  law?  Was  the  fact  that  he 
took  the  life  of  an  adulterer,  because  he  had  committed  adultery,  a legal  excuse 
for  the  homicide  ? Mr.  Stanton  undertook  to  show,  as  matter  of  law,  that  the 
prisoner  was  justified;  that  those  decisions  which  sustained  a contrary  doctrine 
had  their  origin  in  an  age  which  for  vice  and  profligacy  has  no  parallel  in  the 
history  of  the  Anglo-Saxon  race,  and  that  the  law  declared  during  that  period 
had  no  precedent  in  the  past,  and  had  not  been  followed  since.  He  argued 
the  question  in  all  its  bearings,  not  only  as  affected  by  the  common  law  of 

’ State  V.  Neville,  6 Jones  (N.  C.)  Law,  433. 


DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


327 


England,  but  the  aspect  in  which  the  prisoner’s  acts  would  have  been  regarded 
under  other  systems  of  jurisprudence  which  have  prevailed  among  men  since  the 
morning  of  time.  He  cites  the  law  of  Moses  for  the  government  of  the  Jews,  a 
people  whose  statutes  were  ordained  not  by  any  human  legislature,  but  by  divine 
authority.  And  so  under  the  law  of  all  civilized  countries  of  which  we  have  any 
account  in  ancient  history,  either  sacred  or  profane,  there  is  but  one  answer  to  the 
question  as  to  the  punishment  of  the  adulterer.  When,  however,  Mr.  Stanton 
justifies  his  client’s  conduct  upon  the  broad  principles  of  self-protection,  which 
he  asserts  as  a natural  right,  his  argument  is  great.  His  eloquent  description  of 
the  sanctity,  the  beauty  and  purity  of  the  family  relation,  and  the  importance  of 
family  influence  as  the  great  factor  in  social  life,  upon  which  alone  the  existence 
of  civil  society  depends,  commands  admiration  and  is  rendered  powerful  and 
effective;  while  the  conclusion  is  irresistible,  that  the  crime  of  adultery  brings 
destruction  not  only  upon  the  individual,  but  upon  society  itself.  The  argument 
was  not  upon  the  facts  to  the  jury,  but  upon  the  law  to  the  court,  in  order  to 
sustain  the  position  taken  by  the  prisoner’s  counsel  upon  the  requests  to  charge 
the  jury.  In  order  that  the  argument  may  be  thoroughly  understood,  the  reader 
will  find  the  requests  submitted  by  the  prosecution  and  the  defense,  and  the  rul- 
ings of  the  court,  at  page  718  of  the  Appendix. 

Before  Mr.  Stanton  filled  the  office  of  attorney-general  of  the  United  States, 
his  reputation  as  a lawyer  was  established  in  connection  with  the  Wheeling 
Bridge  Case,  and  the  Pennsylvania  Railroad  v.  The  Canal  Commissioners,  re- 
ported in  9th  of  Harris.  A brilliant  advocate  and  profound  lawyer,  he  possessed 
also  the  qualities  of  a great  judge.  By  his  early  demise,  shortly  after  his  ap- 
pointment to  the  bench  of  the  Supreme  Court  of  the  United  States,  the  world 
has  lost  the  benefit  of  his  ripe  learning,  wide  research  and  experience. 

The  trial  of  Mr.  Sickles  was  commenced  on  Monday,  April  4th,  1859, 
Criminal  Court  for  the  District  of  Columbia,  at  the  city  of  Washington,  before  Hon. 
T.  H.  Crawford  and  a jury.  Robert  Quid,  U.  S.  District-Attorney,  was  assisted 
on  behalf  of  the  prosecution  by  Mr.  J.  M.  Carlisle,  of  Washington.  The  follow- 
ing gentlemen  appeared  for  the  prisoner:  James  T.  Brady  and  John  Graham,  of 
New  York,  Edwin  M.  Stanton,  Mr.  Radcliff,  Mr.  Clinton,  Mr.  Magruder,  and 
Mr.  Phillips,  of  Washington.  The  trial  lasted  twenty  days,  and  resulted  in  ver- 
dict of  acquittal.  Mr.  Stanton  addressed  the  court  as  follows: 

May  it  please  your  Honor: — It  becomes  my  duty  to  present 
some  considerations  in  support  of  the  points  of  law  which  have 
been  submitted  by  the  defense,  and  which  points  are  in  conformity 
with  those  which  may  be  given  to  a jury.^  The  event  which  has 
brought  the  jury  and  the  prisoner  at  the  bar  into  solemn  relations, 
and  made  the  court  and  counsel  participators  in  this  momentous 
trial,  is  the  death  of  Mr.  Key  at  the  hand  of  Mr.  Sickles,  which 
took  place  on  Sunday,  the  27th  of  February.  The  occasion  of 
this  event  was  an  adulterous  intrigue  between  Mr.  Key  and  the 
wife  of  Mr.  Sickles.  The  law  rising  on  the  case  must  depend  on 

* For  the  points  submitted,  see  Appendix,  p.  718. 


328 


ARGUMENT  OF  EDWIN  M.  STANTON 


the  relations  each  held  to  the  other  at  the  time  the  occurrence 
took  place.  Two  theories  have  been  presented — one  by  the  pros- 
ecution, the  other  by  the  defense.  Those  theories,  as  in  all  such 
cases,  are  opposite;  and  it  will  be  for  the  court,  by  a comparison 
of  those  theories  with  the  known  principles  of  law,  to  give  to  the 
jury  the  instruction. 

I.  Homicide  defined. 

The  act  of  taking  human  life  is  designated  in  law  by  the  general 
term  of  homicide,  which  may  be  either  with  malice  or  without 
malice.  The  act  of  Congress  which  governs  in  this  district,  des- 
ignates two  grades  of  unlawful  homicide,  namely,  murder  and 
manslaughter.  “ Murder,"  says  Blackstone,  “ is  now  thus  defined, 
or  rather  described,  by  Sir  Edward  Coke:  ‘ When  a person  of  sound 
memory  and  discretion  unlawfully  killeth  any  reasonable  creature 
in  being,  and  under  the  king’s  peace,  with  malice  aforethought, 
either  express  or  implied.’  ’’  The  same  author  defines  man- 
slaughter to  be  “ the  unlawful  killing  of  another  without  malice, 
either  express  or  implied;  which  may  be  either  voluntary,  upon  a 
sudden  heat,  or  involuntary,  but  in  the  commission  of  some  unlaw- 
ful act.’’  In  some  States  the  law  designates  other  grades  of  unlaw- 
ful homicide,  but  only  two  are  designated  by  the  act  of  Congress 
before  referred  to;  but  life  may  be  taken  under  circumstances  which 
the  law  will  excuse  or  justify.  This  must  depend  on  a variety  of 
circumstances,  neither  foreseen  nor  enumerated,  and  must  be  judged 
by  wise  tribunals  and  by  maxims  which  form  the  common  law  of 
the  land,  and  are  essential  to  peace  and  security.  They  are  illus- 
trated by  examples  and  cases,  whence  the  reason  of  the  law  can 
be  derived,  and  by  these  the  true  rule  of  judgment  is  ascertained. 

There  are  two  classes  of  cases  in  which  a man  may  be  exempted 
from  judicial  punishment  for  killing,  namely,  self-protection,  which 
is  a natural  right,  and,  secondly,  the  defense  of  one’s  household 
from  the  thief  or  robber.  But  there  is  a third  class,  arising  from 
the  social  relation,  for  the  law  holds  family  chastity  and  the  sanctity 
of  the  marriage  bed,  the  matron’s  honor  and  the  virgin’s  purity, 
to  be  more  valuable  and  estimable  in  law  than  the  property  or  life 
of  any  man.  The  present  case  belongs  to  that  class.  On  it  rests  the 
foundation  of  the  social  system.  As  it  involves  the  life  of  the 
prisoner,  it  cannot  be  too  carefully  considered.  Indeed  this  prin- 
ciple has  never  come  before  a judicial  tribunal  in  a form  more  im- 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


321) 


pressive  than  now.  Here,  in  the  capital  of  the  nation,  the  social 
and  political  metropolis  of  thirty  millions  of  people,  a man  of 
mature  age,  the  head  of  a family,  a member  of  the  learned  profes- 
sion, a high  officer  of  the  government,  intrusted  with  the  adminis- 
tration of  the  law,  and  who  for  years  at  this  bar  has  demanded 
judgment  of  fine,  imprisonment  and  death  against  other  men  for 
offenses  against  law,  has  himself  been  slain  in  open  day  in  a public 
place,  because  he  took  advantage  of  the  hospitality  of  a sojourner 
in  this  city.  Received  into  his  family,  he  debauched  his  house, 
violated  the  bed  of  his  host,  and  dishonored  his  family.  On  this 
ground,  alone,  the  deed  of  killing  was  committed. 

2.  Theory  of  the  defense. 

The  instructions  presented  by  defendant  bring  to  the  view  of 
the  court  two  consistent  lines  of  defense — one,  that  the  act  of  the 
prisoner  at  the  bar  is  justified  by  the  law  of  the  land,  under  the  cir- 
cumstances of  its  commission;  the  other,  that,  whether  justified  or 
not,  it  is  free  from  legal  responsibility  by  reason  of  the  state  of  the 
prisoner’s  mind.  When  the  crime  was  committed  against  him  by 
the  deceased,  in  both  points  of  view,  the  relations  which  the  de- 
ceased and  the  prisoner  at  the  bar  bore  to  each  other  at  the  moment 
of  the  fatal  act  are  to  be  observed — one,  as  a husband  outraged  in 
his  house,  his  family,  and  his  marital  rights;  the  other,  an  adulterer 
in  flagrante  delicto.  While  counsel  for  the  prisoner  insist  that  the 
act  is  justified  by  the  law,  the  counsel  for  the  prosecution  assert 
that  the  act  is  destructive  of  the  existence  of  society,  and  demand 
judgment  of  death  against  him  as  a fitting  penalty. 

3.  Effects  of  the  crime  of  adultery  upon  the  home 
CIRCLE. — Sanctity  of  the  nuptial  bond. 

The  very  existence  of  civil  society  depends  not  on  human  life, 
but  on  the  family  relations.  “ Who  knows  not,”  says  John  Milton, 
“ that  chastity  and  purity  of  living  cannot  be  established  or  con- 
tinued, except  it  be  first  established  in  private  families,  from 
whence  the  whole  breed  of  men  come  forth  ? ” “ The  family,”  says 

another  distinguished  moralist,  “ is  the  cradle  of  sensibility,  where 
the  first  lessons  are  taught  of  that  tenderness  and  humanity  which 
cement  mankind  together;  and  were  they  extinguished,  the  whole 
fabric  of  society  would  be  dissolved.”  In  a general  sense,  the 


330 


ARGUMENT  OF  EDWIN  M.  STANTON 


family  may  embrace  various  degrees  of  affinity,  more  or  less  near; 
but  in  a strictly  legal  sense  it  embraces  the  relations  of  husband 
and  wife,  parent  and  child,  brother  and  sister.  The  first  and  most 
sacred  tie,  however,  is  the  nuptial  bond.  “ Eternal  discord  and 
violence,”  says  a great  moralist,  “would  ensue  if  man’s  chief  object 
of  affection  were  secured  to  him  by  no  legal  tie.”  No  man  could 
enjoy  any  happiness  or  pursue  any  vocation  if  he  could  not  enjoy 
his  wife  free  from  the  assaults  of  the  adulterer.  The  dignity  and 
permanence  of  the  marriage  are  destroyed  by  adultery.  When  the 
wife  becomes  the  adulterer’s  prey,  the  family  is  destroyed,  and  all 
family  relations  are  involved  in  the  ruin  of  the  wife.  When  a man 
accepts  a woman’s  hand  in  wedlock,  he  receives  it  with  a vow  that 
she  will  love,  honor,  serve  and  obey  him  in  sickness  or  in  health, 
and  will  cleave  only  to  him.  This  bond  is  sanctified  by  the  law  of 
God.  “What  God  hath  joined  together  let  no  man  put  asunder.” 
By  a marriage,  the  woman  is  sanctified  to  the  husband,  and  this 
bond  must  be  preserved  for  the  evil  as  well  as  for  the  good.  It  is 
the  blessing  of  the  marital  institution  that  it  weans  men  from  their 
sins  and  draws  them  to  the  performance  of  their  duties.  This  seal 
of  the  nuptial  vow  is  no  idle  ceremony.  Thenceforth  the  laAV  com- 
mands the  adulterer  to  beware  of  disturbing  their  peace.  It  com- 
mands that  no  man  shall  look  on  woman  to  lust  after  her. 

The  penalty  for  disobedience  to  that  injunction  did  not  originate 
in  human  statutes;  it  was  written  in  the  heart  of  man  in  the  Garden 
of  Eden,  where  the  first  family  was  planted,  and  where  the  wom.an 
was  made  bone  of  man’s  bone,  flesh  of  man’s  flesh.  No  wife  yields 
herself  to  the  adulterer’s  embrace  till  he  has  weaned  her  love  from 
her  husband;  she  revolts  from  her  obedience,  and  serves  the  hus- 
band no  longer.  When  her  body  has  been  once  surrendered  to  the 
adulterer,  she  longs  for  the  death  of  her  husband,  whose  life  is 
often  sacrificed  by  the  cup  of  the  poisoner,  or  the  dagger  or  pistol 
of  the  assassin. 

4.  The  hallowed  relation  as  between  parent  and  child. 

The  next  greatest  tie  is  that  of  parent  and  child.  If  in  God’s 
providence  a man  has  not  only  watched  over  the  cradle  of  his 
child,  but  over  the  grave  of  his  offspring,  and  has  witnessed  earth 
committed  to  earth,  ashes  to  ashes,  and  dust  to  dust,  he  knows  that 
the  love  of  a parent  for  his  child  is  stronger  than  death.  The  bit- 
ter lamentation — “Would  to  God  I had  died  for  thee” — has  been 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


331 


wrung  from  many  a parent’s  heart.  But  when  the  adulterer’s 
shadow  comes  between  the  parent  and  child,  it  casts  over  both  a 
gloom  darker  than  the  grave.  What  agony  is  equal  to  his  who 
knows  not  whether  the  children  gathered  around  his  board  are  his 
own  offspring  or  an  adulterous  brood,  hatched  in  his  bed.  To  the 
child  it  is  still  more  disastrous.  Nature  designs  that  children  shall 
have  the  care  of  both  parents;  the  mother’s  care  is  the  chief  bless- 
ing to  her  child — a mother’s  honor  its  priceless  inheritance.  But 
when  the  adulterer  enters  a family,  the  child  is  deprived  of  the  care 
of  one  parent,  perhaps  of  both.  When  death,  in  God’s  providence, 
strikes  a mother  from  the  family,  the  deepest  grief  that  preys  upon 
a husband’s  heart  is  the  loss  of  her  nurture  and  example  to  his 
orphan  child;  and  the  sweetest  conversation  between  parent  and 
child  is  when  they  talk  of  the  beloved  mother  who  is  gone.  But 
how  can  a father  name  a lost  mother  to  his  child,  and  how  can  a 
daughter  hear  that  mother’s  name  without  a blush  ? Death  is 
merciful  to  the  pitiless  cruelty  of  him  whose  lust  has  stained  the 
fair  brow  of  innocent  childhood  by  corrupting  the  heart  of  the 
mother,  whose  example  must  stain  the  daughter’s  life. 

5.  The  tie  between  brother  and  sister. 

The  pride  and  glpry  of  the  family  is  its  band  of  brothers  and 
sisters.  Sprung  from  the  same  love,  with  the  same  blood  coursing 
in  their  veins,  their  hearts  are  bound  together  by  a cord  which 
death  cannot  sever;  for,  wide  asunder  as  may  be  the  graves  of  a 
household,  varied  as  may  be  their  life  here  on  earth,  when  life’s 
rough  ocean  is  passed,  sooner  or  later  they  will  rejoice  on  the 
heavenly  coast — a family  in  heaven.  But  when  the  adulterer  puts 
a young  wife  asunder  from  her  husband,  her  child  is  cut  off  from 
all  kindred  fellowship.  The  companionship  and  protection  of  a 
brother  of  the  same  blood  can  never  be  hers.  No  sister  of  the 
same  blood  can  ever  share  her  sorrow  or  her  joy.  Alone,  thence- 
forth, she  must  journey  through  life,  bowed  down  with  a mother’s 
shame.  Nor  does  the  evil  stop  here.  It  reaches  up  to  the  aged 
and  venerable  parents  of  the  wretched  husband  and  of  the  ruined 
wife,  and  stretches  around  to  the  circle  of  relatives  and  friends  that 
cluster  around  every  hearth.  Such  are  the  results  of  the  adulterer's 
crime  on  the  home — on  the  home,  not  as  it  is  painted  by  the  poet's 
fancy,  but  home  as  it  is  known  and  recognized  by  the  law — as  it 
exists  in  the  household,  and  as  it  belongs  to  the  family  of  every 


332 


ARGUMENT  OF  EDWIN  M.  STANTON 


man.  They  show  that  the  adulterer  is  the  foe  of  every  social,  rela- 
tion, the  destroyer  of  every  domestic  affection,  the  fatal  enemy  of 
the  family,  and  the  desolator  of  the  home.  The  crime  belongs  to 
the  class  known  in  law  as  i?iala  in  se — evil  in  itself — fraught  with 
ruin  to  individuals  and  destruction  to  society. 

6.  The  punishment  of  adultery  under  the  Levitical  law. 

Such  being  its  nature,  we  can  easily  perceive  why  it  is  that  in 
Holy  Writ  the  crime  of  the  adulterer  is  pronounced  to  be  one 
which  admits  of  no  ransom  and  no  recompense.  We  can  perceive 
why  it  is  that  in  every  book  of  the  Old  and  New  Testament  it  is 
denounced;  why  it  is  that  by  every  holy  lawgiver,  prophet  and 
saint,  it  is  condemned.  We  can  understand  why  it  is  that  twice  it 
is  forbidden  in  the  Ten  Commandments,  and  why  it  is  that  Jehovah 
himself,  from  the  tabernacle  in  the  midst  of  the  congregation,  de- 
clared that  “the  man  who  committeth  adultery  with  another 
man’s  wife,  even  he  who  committeth  adultery  with  his  neighbor’s 
wife,  shall  surely  be  put  to  death.”  By  God’s  own  ordinance  he 
was  to  be  stoned  to  death,  so  that  every  family  in  Israel,  every  man, 
woman  and  child  might  have  a hand  in  the  punishment  of  the 
common  enemy  of  the  family.  By  the  Levitical  law,  the  adulteress 
was  subject  to  the  same  punishment.  But  the  Redeemer  of  man- 
kind, when  on  earth,  is  supposed  to  have  mitigated  the  punishment 
of  the  adulteress  by  requiring  him  who  was  without  sin  to  cast  at 
her  the  first  stone.  No  such  condition,  however,  was  imposed  in 
favor  of  the  adulterer.  There  was  no  mitigation  of  his  crime,  and 
we  know  the  Saviour’s  judgment  of  the  sin  when  he  declared  that 
“ he  who  looketh  at  a woman  to  lust  after  her  committeth  adultery 
in  his  heart.”  From  the  silence  of  Scripture  on  the  occasion  re- 
corded in  the  Gospel  of  John,  it  is  to  be  inferred  that,  as  the  adul- 
terer and  adulteress  had  been  taken  in  the  act,  the  adulterer  on 
that  day  in  Jerusalem  had  been  put  to  death  by  the  husband,  as  he 
might  be  by  the  Roman  law,  before  the  adulteress  had  been  brought 
to  the  Saviour’s  feet.  This  case  has  been  cited  here,  as  it  often  is 
in  favor  of  the  adulterer  and  against  the  husband.  But  the  argu- 
ment of  Dr.  Paley,  alluded  to  by  counsel  on  the  other  side,  con- 
clusively shows  that  that  case  cannot  be  cited  in  favor  of  the  adul- 
terer. On  that  day,  in  Jerusalem,  the  laws  of  Moses,  as  a civil 
and  political  institution,  had  passed  away  and  the  Roman  law  had 
taken  its  place. 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


333 


Why  was  it  that  the  men  of  Jerusalem  brought  not  to  the  Saviour 
the  adulterer  who  had  been  taken  at  the  same  time,  if  they  wanted 
to  know  the  Saviour’s  judgment  of  the  sin  of  adultery.  By  the 
Roman  law,  while  the  adulterer  suffered  death,  that  punishment 
does  not  seem  to  have  been  inflicted  on  the  adulteress.  This 
woman,  therefore,  was  brought  to  the  Saviour’s  feet  to  hear  what 
would  be  his  judgment.  If  he  had  undertaken  to  say  that  the  laws 
of  Moses  ought  not  to  prevail  then,  an  accusation  might  be  brought 
against  him  in  the  synagogue;  and  if,  on  the  other  hand,  he  had 
said  that  the  laws  of  Moses  should  be  enforced,  then  ready  accusa- 
tion would  have  leaped  to  their  lips  that  he  was  usurping  judicial 
functions,  and  he  would  have  been  brought  before  the  judgment 
seat  of  the  Roman  authorities.  As  Dr.  Paley  observes,  the  case 
only  serves  to  show  that  the  Saviour  meant  to  rebuke  those  who 
tempted  him,  but  that  he  never  designed  to  shield  the  adulterer 
from  the  just  doom  of  the  law. 

7.  Conduct  embraced  within  the  act  of  adultery. 

What,  then,  is  the  act  of  adultery  ? It  cannot  be  limited  to  the 
fleeting  moment  of  sexual  contact;  that  would  be  a mockery;  for 
then  the  adulterer  would  ever  escape.  But  law  and  reason  mock 
not  human  nature  with  any  such  vain  absurdity.  The  act  of  adul- 
tery, like  the  act  of  murder,  is  supposed  to  include  every  proximate 
act  in  furtherance  of,  and  as  a means  to,  the  consummation  of  the 
wife’s  pollution.  This  is  an  established  principle  in  American  and 
English  law,  established  from  the  time  of  Lord  Stowell,  as  will  be 
hereafter  shown.  If  the  adulterer  be  found  in  the  husband’s  bed, 
he  is  taken  in  the  act,  within  the  meaning  of  the  law,  as  if  he  was 
found  in  the  wife’s  arms.  If  he  provide  a place  for  the  express 
purpose  of  committing  adultery  with  another  man’s  wife,  and  be 
found  leading  her,  accompanying  her,  or  following  her  to  that  place 
for  that  purpose,  he  is  taken  in  the  act.  If  he  not  only  provides, 
but  habitually  keeps  such  a place,  and  is  accustomed  by  precon- 
certed signals  to  entice  the  wife  from  the  husband’s  house,  to  be- 
siege her  in  the  streets,  to  accompany  him  to  that  vile  den;  and  if, 
after  giving  such  preconcerted  signal,  he  be  found  watching  her, 
spy-glass  in  hand,  and  lying  in  wait  around  a husband’s  house,  that 
the  wife  may  join  him  for  that  guilty  purpose,  he  is  taken  in  the  act. 

If  a man  hire  a house,  furnish  it,  provide  a bed  in  it  for  such  a 
purpose,  and  if  he  be  accustomed,  day  by  day,  week  by  week,  and 


ARGUMENT  OF  EDWIN  M.  STANTON 


month  by  month,  to  entice  her  from  her  husband’s  house,  to  tramp 
with  her  through  the  streets  to  that  den  of  shame,  it  is  an  act  of 
adultery,  and  is  the  most  appalling  one  that  is  recorded  in  the 
annals  of  shame;  if,  moreover,  he  has  grown  so  bold  as  to  take  the 
child  of  the  injured  husband,  his  little  daughter,  by  the  hand,  to 
separate  her  from  her  mother,  to  take  the  child  to  the  house  of  a 
mutual  friend  while  he  leads  the  mother  to  the  guilty  den,  in  order 
there  to  enjoy  her,  it  presents  a case  surpassing  all  that  has  ever 
been  written  of  cold,  villainous,  remorseless  lust. 

8.  The  husband  legally  justified  in  slaying  the 

ADULTERER. 

If  this  be  not  the  culminating  point  of  adulterous  depravity, 
how  much  farther  could  it  go  ? There  is  no  one  point  beyond. 
The  wretched  mother,  the  ruined  wife,  has  not  yet  plunged  into  the 
horrible  filth  of  common  prostitution,  to  which  she  is  rapidly  hurry- 
ing, and  which  is  already  yawning  before  her.  Shall  not  that  mother 
be  saved  from  that,  and  how  shall  it  be  done  ? When  a man  has 
obtained  such  a power  over  another  man’s  wife  that  he  can  not  only 
entice  her  from  her  husband’s  house,  but  separate  her  from  her 
child  for  the  purpose  of  guilt,  it  shows  that  by  some  means  he  has 
acquired  such  an  unholy  mastery  over  that  woman’s  body  and  soul 
that  there  is  no  chance  of  saving  her  while  he  lives,  and  the  only 
hope  of  her  salvation  is  that  God’s  swift  vengeance  shall  overtake 
him.  The  sacred  glow  of  well-placed  domestic  affection,  no  man 
knows  better  than  your  Honor,  grows  brighter  and  brighter  as  years 
advance,  and  the  faithful  couple  whose  hands  were  joined  in  holy 
w’edlock  in  the  morning  of  youth  find  their  hearts  drawn  closer  to 
each  other  as  they  descend  the  hill  of  life  to  sleep  together  at  its 
foot;  but  lawless  love  is  short-lived  as  it  is  criminal,  and  the  neigh- 
bor’s wife  so  hotly  pursued,  by  trampling  down  every  human  feel- 
ing and  divine  law,  is  speedily  supplanted  by  the  object  of  some 
fresher  lust,  and  then  the  wretched  victim  is  sure  to  be  soon  cast 
off  into  common  prostitution,  and  swept  through  a miserable  life 
and  a horrible  death  to  the  gates  of  hell,  unless  a husband’s  arm 
shall  save  her. 

Who,  seeing  this  thing,  would  not  exclaim  to  the  unhappy  hus- 
band: Hasten,  hasten,  hasten  to  save  the  mother  of  your  child. 
Although  she  be  lost  as  a wife,  rescue  her  from  the  horrid  adulterer; 
and  may  the  Lord,  who  watches  over  the  home  and  the  family, 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


335 


guide  the  bullet  and  direct  the  stroke.*  And  when  she  is  delivered, 
who  would  not  reckon  the  salvation  of  that  young  mother  cheaply 
purchased  by  the  adulterer’s  blood  ? Aye,  by  the  blood  of  a score 
of  adulterers  ? The  death  of  Key  was  a cheap  sacrifice  to  save 
one  mother  from  the  horrible  fate  which,  on  that  Sabbath  day, 
hung  over  this  prisoner’s  wife  and  the  mother  of  his  child. 

Mr.  Stanton  here  reviewed  the  authorities,  both  English  and  American,  bear- 
ing upon  the  question  of  adultery  as  a justification  for  homicide.  He  then  pro- 
ceeded: 

Under  the  laws  of  Maryland,  as  they  descended  to  the  District 
of  Columbia,  at  the  time  of  the  cession  in  i8oi,  it  has  never  been 
adjudged  by  this  or  any  other  court,  that  the  man  who  destroyed 
the  violator  of  his  family  chastity  was  guilty  of  a crime. 

9.  Review  of  Manning’s  case.* 

Manning  was  a married  man,  who,  entering  his  house  one  day, 
found  his  wife  in  the  arms  of  a neighbor  who  was  committing  adul- 
tery with  her.  The  husband  snatched  up  a stool  and  struck  a blow 
over  the  adulterer’s  head,  and  killed  him  on  the  spot;  and  for  this 
was  arraigned  as  a prisoner  for  murder.  As  an  Englishman  it  was 
his  birthright  to  have  the  act  passed  upon  by  a jury  of  his  country, 
and  his  innocence  or  guilt  determined  by  them  in  accordance  with  the 
common  law.  But  this  was  in  the  dark  day  of  judicial  tyranny  and 
corruption;  the  day  when  jurors  were  fined  and  sent  to  jail,  as  the 
authorities  show,  for  refusing  to  find  verdicts  against  their  con- 
sciences, in  accordance  with  the  charge  of  the  court;  in  a day  when, 
from  the  King’s  Bench,  from  Westminster  Hall,  it  was  declared  that 
the  judge  was  intrusted  with  the  liberties  of  the  people,  and  that 
his  saying  was  the  law.  That  was  the  day  when  it  was  adjudged 
that  the  husband  was  a felon  for  killing  a man  caught  in  adultery 
with  his  wife.  In  Manning’s  case.  Judge  Twisden  directed  a special 
verdict,  and  determined  the  degree  of  guilt  himself;  and  Manning 
was  punished  by  being  branded  on  the  hand  as  a felon. 

10.  Slaying  the  adulterer  no  crime  under  the  law. 

There  were  four  epochs  in  which  killing  in  such  cases  went  un- 
punished: it  was  justified  under  the  Jewish  dispensation,  by  the 

^ Here  the  audience  broke  into  an  unrestrainable  burst  of  applause,  which 
the  officers  of  the  court  vainly  endeavored  to  check. 

^ Sometimes  cited  Maddy’s  Case,  Ventris’s  R.  p.  158;  Sir  T.  Raymond’s  R, 
p.  212;  2 Keble’s  R.  p.  829. 


336 


ARGUMENT  OF  EDWIN  M.  STANTON 


laws  of  Solon,  by  those  of  the  Roman  empire,  and  by  the  Gothic 
institutions  which  have  given  shape  to  our  own.  By  the  mere  force 
of  frequent  repetition  in  the  books,  of  Manning’s  case,  it  has  come 
to  be  believed  that  a man  must  stand  by  the  bed  of  his  wife  and 
behold  the  adulterer  polluting  his  bed,  and  not  raise  his  hand 
against  him.  From  the  time  of  Edward  II  to  King  Charles — three 
hundred  and  sixty  odd  years — no  word  is  to  be  found  in  the  com- 
mon law,  no  word  imputing  guilt  to  the  slayer  of  the  violator  of  the 
chastity  of  his  wife.  This  right  to  kill  was  never  denied  till  now. 
There  is  one  fact  I have  never  before  seen  related,  except  by  Paley, 
that  by  the  laws  of  the  commonwealth,  immediately  preceding  the 
time  of  Charles,  adultery  was  punished  by  death. 

MR.  CARLISLE. — Blackstone  mentioned  it.  In  1650,  at  a 
period  before  the  judgment  in  Manning’s  case,  it  was  punishable  by 
death. 

MR.  STANTON. — The  age  of  Charles  was  an  age  of  adultery 
and  gross  corruption;  the  palace  was  filled  with  harlots  and  thronged 
with  adulterers  and  adulteresses;  the  judges  were  the  panderers, 
partakers  and  protectors  of  the  corruptions  of  the  age,  and  the  same 
court  which  adjudged  the  husband  to  be  a felon  for  slaying  the 
adulterer  on  his  bed,  fined  and  sent  jurors  to  prison  for  refusing  to 
find  verdicts  in  accordance  with  its  instructions.  It  was  the  same 
court  which  hunted  Quakers,  Catholics  and  Nonconformists  to 
death;  the  same  court  which  persecuted  John  Howe  and  Richard 
Baxter,  and  which  sent  to  the  pillory  and  prison  John  Bunyan  for 
preaching  the  gospel  to  the  poor.' 

This  was  the  state  of  the  laws  and  social  life  at  the  time  the 
principle  was  introduced  into  the  common  law  of  England,  that  to 
kill  an  adulterer  in  the  act  is  a crime.  And  when  society  in  this 
district  is  reduced  to  the  same  condition,  and  when  the  government 
offices  are  filled  by  open  and  avowed  adulterers,  when  the  profes- 
sions of  law  and  medicine  shall  be  thronged  with  libertines,  when 
the  wife’s  purity  and  family  chastity  shall  become  a jest,  then  it  will 
be  time  to  introduce  here  a principle  of  common  law  never  before 
heard  from  the  judgment-seat;  then  it  will  be  necessary  for  the 
court  to  extend  the  shield  of  law  over  its  attorneys  to  save  their 
lives  from  the  hands  of  the  husbands  whose  wives  they  have  vio- 
lated, whose  homes  they  have  destroyed,  and  whose  families  they 
have  made  desolate. 

^ For  a history  of  those  times,  Mr.  Stanton  referred  to  Macaulay,  vol.  I, 
p.  140. 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES. 


337 


II.  The  wife’s  consent  no  qualification  of  the  adulter- 
er’s GUILT. 

I claim,  then,  on  this  proposition,  that  the  expression  or  rule  of 
the  common  law  in  regard  to  the  consent  of  the  wife  had  its  origin 
in  a state  of  manners  and  of  social  life  that  do  not  exist  in  this 
country,  and  that  that  rule  is  not  applicable  here.  It  is  founded 
on  the  principle  that  the  wife’s  consent  can  qualify  the  degree  of 
the  adulterer’s  guilt,  and  determines  the  husband  to  be  a criminal. 
In  American  society,  there  is  a freedom  from  restraint  and  super- 
vision that  exists  nowhere  else,  and  this  results  from  various  causes: 
husbands,  fathers  and  brothers  devote  a large  share  of  time  to  the 
cares  of  life  and  to  the  duties  of  providing  for  the  family,  during 
which  time  the  female  portion  of  the  family  are  left  to  themselves 
without  protection.  The  frequent  changes  of  habitation  and  the 
equality  of  our  social  condition  lead  to  a frankness  of  intercourse 
which  requires,  for  the  sanctity  of  the  home  and  the  security  of  the 
marriage  bed,  a rigorous  personal  responsibility  to  the  death.  The 
peculiar  conditions  of  society  in  this  District  are  also  to  be  noted 
before  any  principle  like  that  of  social  law  can  be  introduced. 

Families  come  hither  from  all  parts  of  the  Union  to  remain  for 
a shorter  or  a longer  period  of  time.  To  enjoy  any  social  life  here, 
the  intercourse  must  be  frank,  without  suspicion.  The  time  which, 
in  long  established  communities,  may  enable  individuals  to  choose 
and  pick  out  those  with  whom  they  may  associate,  is  not  had  here. 
Besides,  it  has  been  the  custom  here  for  officers  of  the  government, 
and  those  in  the  public  employment,  to  throw  open  their  doors  with 
a wide  hospitality  that  exists  nowhere  else.  This  forms  a peculiar 
feature  and  attraction  in  Washington  society,  and  by  the  population 
that  it  attracts  here  and.  the  stimulus  thus  given  to  business,  the 
wealth  and  prosperity  of  the  city  and  District  are  promoted.  But 
if  these  social  occasions  are  to  be  made  the  means  of  guilty  as- 
signations; if  they  are  to  become  the  means  by  which  the  adulterer 
pursues  his  lust,  then  the  doors  of  families  must  be  swiftly  closed. 
No  man  would  be  willing  to  have  his  hospitality  made  the  means  of 
an  assignation,  or  the  social  occasions,  when  he  desires  to  give  his 
friends  and  neighbors  pleasure,  converted  into  opportunities  for 
corrupting  the  innocent  wife  of  his  friend. 

I repeat,  then,  that  the  doctrine  on  which  this  prosecution  rests, 
is  founded  on  the  Manning  case,  copied  by  Hale  and  Foster  and 
Blackstone.  But  it  is  also  to  be  observed  that,  from  the  day  in  which 
22 


338 


ARGUMENT  OF  EDWIN  M.  STANTON 


Manning’s  case  was  decided  to  the  present  hour,  it  has  not  been 
followed  by  the  conviction  of  a husband  in  England.  No  husband 
since  then  has  been  punished  as  a felon  for  taking  the  life  of  an 
adulterer.  In  three  cases  the  doctrine  of  that  case  has  been  de- 
clared from  the  bench,  but  only  by  two  judges:  the  case  of  the 
Queen  against  Fisher,  the  case  of  the  Queen  against  Kelly,  and  an- 
other case.  Two  of  these  were  tried  by  Justice  Pare,  and  the  other 
by  Baron  Rolfe.  In  the  one,  there  was  no  adultery  of  the  wife;  in 
the  other,  no  marriage,  and  in  the  third,  the  crime  was  of  a totally 
different  nature. 

12.  The  English  and  American  authorities  discussed. 

As,  from  the  time  of  Alfred  to  the  time  of  Charles  the  Second, 
there  is  no  evidence  that  a husband  was  regarded  as  a felon  in 
common  law  for  slaying  an  adulterer,  so  from  the  time  of  Charles 
the  Second  to  the  present  hour  that  principle  has  never  been  en- 
forced by  the  punishment  of  any  man  in  England. 

Counsel  then  proeeeded  to  argue  that  in  the  three  cases  cited  by  the  prosecu- 
tion from  the  North  Carolina  and  South  Carolina  reports,  there  were  entirely 
distinct  questions  at  issue ; that,  so  far  as  the  marital  relations  of  slaves  were 
concerned,  they  were  not  recognized  by  the  laws  of  those  States,  and  that,  there- 
fore, the  adjudications  or  rulings  in  the  case  of  slaves  did  not  govern  or  apply  to 
this  case. 

There  is  another  case  cited  in  Jones — the  case  of  a white  man; 
but  there  was  sufficient  evidence  to  show  that  the  killing  proceeded 
from  preceding  malice.  The  case,  however,  which  was  cited  from 
Hill’s  Reports,  has  some  analogy  to  this  case.  There  the  adulterer 
slew  a husband  who  was  endeavoring  to  rescue  his  wife,  and  it  was 
held  that  the  murderer  could  not  set  up  the  plea  of  self-defense. 
The  American  common  law  on  this  subject  is  shown  in  the  cases  of 
Singleton  Mercer,  of  Myers,  of  Jacob  Green,  the  case  of  John 
Stump,  and  the  case  of  Jarboe,  where,  in  each  instance,  the  slayer 
of  the  seducer  was  acquitted.  I also  refer  your  Honor  to  Smith’s 
case  and  Sherman’s  case  in  Philadelphia,  Boyer’s  case  in  Virginia, 
and  Ryan’s  case  reported  in  vol.  2 Wheeler’s  Criminal  Cases,  p.  47. 
Where,  then,  I ask,  does  the  adulterous  doctrine  of  Charles  the 
Second  prevail  in  America?  Not  where  the  stars  and  stripes 
wave;  not  even  where  the  royal  banner  of  England  floats;  for  it 
was  not  long  since,  in  Canada,  a husband  had  followed  his  wife’s 
seducer  from  city  to  city  till  he  found  and  slew  him;  and  there  the 


IN  DEFENSE  OF  IION.  DANIEL  E.  SICKLES. 


339 


doctrine  of  Charles  the  Second  was  repelled  and  the  man  instantly 
acquitted. 

By  the  American  law  the  husband  is  always  present  by  his  wife; 
his  arm  is  always  by  her  side;  his  wing  is  ever  over  her.  The  con- 
sent of  the  wife  cannot  in  any  degree  affect  the  question  of  the 
adulterer’s  guilt;  and  if  he  be  slain  in  the  act  by  the  husband,  then 
it  is  justifiable  homicide.  I will  pass,  then,  to  the  question  of  what 
constitutes  the  act.  I understood  one  of  the  learned  counsel  for  the 
prosecution  to  claim,  in  accordance  with  the  very  loose  language  of 
Baron  Parke,  that  it  is  necessary  for  the  husband  to  have  ocular 
demonstration. 

MR.  CARLISLE. — “Finding”  is  the  word. 

MR.  STANTON. — It  does  credit  to  the  frankness  as  well  as  to 
the  good  sense  of  the  counsel  not  to  claim  that  doctrine,  but  that  is 
the  doctrine  of  Manning’s  case.  The  wife  could  not  only  consent 
to  the  act,  but  the  husband,  if  he  came  in  in  the  dark,  could  not  lay 
his  hand  on  the  adulterer  until  he  lit  the  candle  and  saw  his  shame; 
and  then  if  he  slew  the  adulterer  he  must  have  the  felon’s  branding 
on  his  hand.  The  object  was  to  erect  before  the  husband  the  gal- 
lows and  branding  iron,  so  that  the  courtiers  and  corrupt  men  of 
that  age  might  pursue  with  impunity  the  wives  and  daughters  of 
the  people;  hence  they  demanded  not  only  that  the  wives  should 
not  consent,  but  that  the  husband  should  see  his  shame.  As  late 
as  within  the  last  few  years,  Baron  Parke,  sitting  in  the  judgment- 
seat  of  England,  said  that  the  husband  must  have  ocular  inspection 
of  the  act.  What  is  the  act,  and  what  is  necessary  ? It  is  the  fact 
of  adultery  that  constitutes  the  guilt  of  the  individual  and  the  jus- 
tification of  the  husband.  The  fact  is  to  be  manifested  according 
to  the  rules  of  evidence  that  apply  in  regard  to  other  facts.  It  is 
claimed  by  the  defense  that  the  evidence  was  brought  directly  to 
the  visual  senses  of  the  prisoner  at  the  bar;  but  whether  it  was  so 
or  not,  the  fact  is  only  to  be  determined  by  the  ordinary  rules  of 
evidence. 

Counsel  here  referred  to  the  rules  of  evidence  in  regard  to  adultery,  as  laid 
down  in  Poynter  on  Marriages,  p.  187;  Collins  v.  The  State,  vol.  14  Alabama 
Reports,  p.  608;  The  State  v.  Jolly,  vol.  3 Devereux  and  Battle  (N.  C.)  Law,  p.  no. 

13.  The  wife’s  consent  cannot  be  invoked  to  shield 

THE  ADULTERER. 

My  last  proposition  is,  that  the  wife’s  consent  cannot  shield  the 
adulterer,  she  being  incapable  by  law  of  consenting  to  any  infrac- 


340  ARGUMENT  OF  EDWIN  M.  STANTON 

tion  of  her  husband’s  marital  rights,  and  that,  in  the  absence  of 
consent  and  connivance  on  his  part,  every  violation  of  the  wife’s 
chastity  is,  in  the  contemplation  of  law,  forcible  and  against  his 
will,  and  may  be  treated  by  him  as  an  act  of  violence  and  force  on 
his  wife’s  person.  It  follows,  as  a logical  consequence,  from  the 
relation  of  husband  and  wife,  as  stated  in  the  first  proposition,  be- 
cause her  very  being  and  existence  is  suspended,  that  is  to  say, 
“incorporated  and  consolidated,”  says  Blackstone,  into  that  of  the 
husband  during  marriage,  that  any  invasion  of  the  husband’s  right 
or  chastity  of  the  wife  is  a forcible  act. 

The  law  does  not  look  to  the  degree  of  force;  it  looks  to  the 
forcible  movement;  and  being  an  act  of  force,  it  follows  that  the 
right  of  the  husband  to  resist  that  force  is  clear  and  undoubted  on 
the  highest  principles  of  law.  My  friend  here,^  says,  he  condemns 
the  adulterer  as  much  as  any  one,  but  that  he  abhors  lawless  vio- 
lence. So  do  I;  but  the  question  is  here  whether  the  violence  be 
lawless  ? In  undertaking  to  designate  the  act  of  the  prisoner  here 
as  an  act  of  violence,  as  an  act  of  personal  justice,  he  assumes 
the  very  question  that  is  involved,  because  on  no  theory  of  law, 
on  no  system  of  jurisprudence  recognized  among  men,  has  the  de- 
fense of  a right,  the  maintenance  of  possession  in  a right,  the  pro- 
tection of  a right,  been  recognized  either  as  a revengeful  act  or  an 
act  of  lawless  violence.  By  the  contemplation  of  law,  the  wife  is 
always  in  the  husband’s  presence,  always  under  his  wing;  and  any 
movement  against  her  person  is  a movement  against  his  right,  and 
may  be  resisted  as  such. 

14.  The  prisoner’s  right  to  slay  further  based  on  the 

LAW  OF  SELF-DEFENSE. 

We  place  the  ground  of  defense  here  on  the  same  ground  and 
limited  by  the  same  means  as  the  right  of  personal  defense.  If  a 
man  be  assailed,  his  power  to  slay  the  assailant  is  not  limited  to  the 
moment  when  the  mortal  blow  is  about  to  be  given;  he  is  not  bound 
to  wait  till  his  life  is  on  the  very  point  of  being  taken;  but  any 
movement  towards  the  foul  purpose  plainly  indicated  justifies  him 
in  the  right  of  self-defense,  and  in  slaying  the  assailant  on  the  spot. 
The  theory  of  our  case  is,  that  there  was  a man  living  in  a constant 
state  of  adultery  with  the  prisoner’s  wife,  a man  who  was  daily,  by 


* Mr.  Carlisle. 


IN  DEFENSE  OF  HON.  DANIEL  E.  SICKLES.  341 

a moral — no,  by  an  immoral  power — enormous,  monstrous,  and  al- 
together unparalleled  in  the  history  of  American  society,  or  in  the 
history  of  the  family  of  man,  a power  over  the  being  of  this  woman 
— calling  her  from  her  husband’s  house,  drawing  her  from  the  side 
of  her  child,  and  dragging  her,  day  by  day,  through  the  streets  in 
order  that  he  might  gratify  his  lust.  The  husband  beholds  him  in 
the  very  act  of  withdrawing  his  wife  from  his  roof,  from  his  pres- 
ence, from  his  arm,  from  his  wing,  from  his  nest;  meets  him  in  that 
act  and  slays  him,  and  we  say  that  the  right  to  slay  him  stands  on 
the  firmest  principles  of  self-defense. 

I have  endeavored,  as  briefly  as  I could,  to  explain  the  prin- 
ciples of  social  law  and  jurisprudence  on  which  the  defense  is 
planted,  and  I trust  that,  on  examination,  it  will  not  be  found  to  be 
any  visionary  ground  of  defense,  or  any  such  mere  theory  as  was 
apprehended  by  my  learned  friend^  who  opened  the  argument. 
He  says  that  society  could  not  exist  on  such  principles,  because  this 
was  the  exercise  of  the  right  of  private  judgment;  and  if  it  was 
to  be  established  as  a principle,  the  land  would  be  a scene  of  blood, 
as  the  punishment  of  adultery  would  be  follow^ed  by  the  punish- 
ment of  other  crimes.  Now,  if  it  were  so,  if  this  land  were  to  be  a 
scene  of  blood,  and  if  it  were  necessary  to  make  it  so,  I ask  whether 
blood  had  not  better  run  in  torrents  through  our  streets  than  that 
the  homes  of  men  should  be  destroyed  by  the  adulterer  at  will  ? 
But  it  is  not  so.  Neither  your  Honor  nor  I will  be  frightened  by 
any  such  appaling  picture.  Thank  God,  adultery  is  a crime  that 
is  usually  a stranger  to  American  society.  It  is  but  rarely  in  our 
history  that  some  great  event  like  this  occurs  to  startle  society  and 
lead  it  to  the  examination  of  the  principles  on  which  it  is  founded. 
That  has  been  the  case,  and  should  it  lead  to  the  examination  of 
the  principles  of  law  on  which  home  and  family  rest,  should  it  result 
in  planting  around  that  home  and  family  the  safeguards  of  the  law, 
in  breaking  through  the  bonds  by  which  the  adulterous  court  of 
Charles  the  Second  undertook  to  bind  the  arm  of  the  husband;  then 
some  good  will  grow  out  of  that  great  evil  that  has  been  produced 
by  this  event. 

It  is  not  my  purpose  to  pursue  this  discussion  in  reference  to 
the  other  points.  I shall  leave  them  to  my  colleague.*  I thank 
your  Honor  for  the  patience  with  which  you  have  heard  me  in  the 
discussion  of  this  question.  I have  endeavored  to  discuss  it  on 


* Mr.  Carlisle. 


• Mr.  James  T.  Brady. 


342 


ARGUMENT  OF  EDWIN  M.  STANTON. 


principles  which  I believe,  as  a man,  as  a father,  and  as  a husband; 
to  be  essential  to  the  peace  and  security  of  your  home  and  mine. 
I have  endeavored  to  discuss  it  on  principles  which  are  essential  to 
the  peace  and  prosperity  of  the  society  in  which  my  home  is  planted 
as  well  as  yours;  and  I hope  that,  by  the  blessing  of  God,  as  it  has 
been  your  Honor’s  good  fortune  to  lay  down  the  law  which  secures 
the  family,  in  one  aspect,  from  the  seducer  of  the  sister,  you  may 
also  plant  on  the  best  and  surest  foundations  the  principles  of  law 
which  secure  the  peace  of  the  home,  the  security  of  the  family,  and 
the  relations  of  husband  and  wife,  which  have  been  in  the  most 
horrid  manner  violated  in  this  case. 


SPEECH  OF  JAMES  T.  BRADY, 


In  Defense  of  the  “Savannah  Privateers,”  Indicted  for 

Piracy. 

AT  A CIRCUIT  COURT  OF  THE  UNITED  STATES,  HELD 
AT  THE  CITY  OF  NEW  YORK,  OCTOBER  TERM,  i86i. 


Analysis  of  Mr.  Brady’s  Speech. 


1.  Piracy.  — Nature  and  character  of  the 
crime. 

s.  Piracy  under  the  law  of  nations,  and  un- 
der the  acts  of  Congress. — The  “ En- 
chantress ” case. 

3.  The  questijn  of  intent  one  of  fact  for  the 

jury. 

4.  Intent  can  not  be  inferred,  but  must  be 

proved. 

5.  Consequences  of  defendants’  acts  not  nec- 

essarily criminal. 

6.  Legal  presumption  of  intent  may  be  over- 

come. —Narration  of  facts. 

7.  Larceny  and  trespass  distinguished. — Il- 
lustrations. 


8.  The  letter  of  marque  a valid  defense. 

9.  The  Liberty  Boys  ” of  New  York  be- 

fore the  revolution. 

10.  Rebellion  as  distinguished  from  revolu- 

tion. 

11.  The  right  of  revolution  a legal  right. 

12.  Secession  synonymous  with  revolution; 

right  synonymous  with  power. 

13.  Evidences  of  the  existence  of  civil  war. 

14.  During  civil  war,  the  combatants  are 

entitled  to  all  the  rights  of  war. — 
Blockade  deSned. 

15.  The  duties  of  an  advocate  require  the 

highest  moral  courage. 


The  trial  of  the  officers  and  crew  of  the  Confederate  privateer  Savannah 
forms  an  interesting  episode  in  the  history  of  the  late  war  of  the  rebellion,  in- 
volving, as  it  did,  a discussion  of  the  legal  aspects  of  that  memorable  conflict; 
the  right  of  revolution  within  the  law  of  nations,  and  the  rights  of  revolutionists 
under  the  laws  of  war.  The  Savannah,  a schooner  of  about  fifty-three  tons 
burden,  armed  with  cannon  and  small  arms,  and  manned  by  a crew  of  twenty 
persons,  including  her  officers,  sailed  from  under  the  shadows  of  Fort  Sumter,  on 
the  morning  of  Sunday,  the  2d  day  of  June,  1861,  and  pushed  out  into  the  At- 
lantic, bound  for  no  port,  and  without  any  particular  point  of  destination  in  view. 
Her  commander,  Thomas  Harrison  Baker,  carried  a letter  of  marque  bearing 
date  the  i8th  of  May,  1861,  issued  by  Jefferson  Davis,  signing  himself  “ Presi- 
dent of  the  Confederate  States  of  America,”  whereby  the  Savannah  was  commis- 
sioned and  authorized  “ to  act  as  a private  armed  vessel  of  the  Confederate  States, 
on  the  high  seas,  against  the  United  States  of  America,  their  ships,  vessels,  goods 
and  effects,  and  those  of  her  citizens,  during  the  pendency  of  the  war  now  exist- 
ing between  the  said  Confederate  States  and  the  said  United  States.” 

On  Monday,  the  3d  of  June,  the  Savannah  descried  a sail  and  gave  chase, 
flying  the  American  colors.  The  vessel  proved  to  be  the  American  brig  Joseph, 

[343] 


SPEECH  OF  JAMES  T.  BRADY 


SU 

laden  with  sugar,  from  Cardenas,  in  Cuba,  bound  for  Philadelphia.  When  with- 
in hailing  distance.  Captain  Baker  ran  up  the  confederate  flag,  and  ordered  the 
master  of  the  Joseph  on  board  his  vessel,  with  his  papers,  by  authority  of  the 
Confederate  States,  saying,  in  response  to  an  inquiry  from  the  Joseph,  “ I am 
sorry  for  it,  but  you  make  war  upon  us,  and  we  have,  in  retaliation,  to  make  war 
upon  you.”  A prize  crew  was  put  on  board  the  Joseph,  and  she  was  run  into  a 
confederate  port  and  sold  as  a prize.  Upon  the  same  day,  however,  the  Savannah 
was  captured  by  the  United  States  brig-of-war  Perry.  The  prisoners  were  after- 
wards transferred  to  the  Minnesota,  which  ran  into  Hampton  Roads,  and  were 
there  placed  on  board  the  Harriet  Lane,  which  carried  them  to  New  York,  where 
they  were  indicted  by  the  United  States  grand  jury,  and  tried  upon  a charge  of 
piracy. 

Twelve  prisoners  were  arraigned  : Thomas  Harrison  Baker,  Charles  Sydney 
Passalaigue,  John  Harleston,  Henry  Cashman  Howard,  Joseph  Cruse  del  Carno, 
Patrick  Daly,  John  Murphy,  Martin  Galvin,  Plenry  Oman,  William  Charles 
Clarke,  Richard  Palmer,  Alexander  Carter  Coid,  and  Albert  G.  Ferris.  The  first 
four  named  were  citizens  of  the  United  States;  the  others  were  foreigners,  and 
had  never  been  naturalized. 

Piracy  is  of  two  kinds  : national  and  municipal.  The  former  is  a crime  un- 
der the  common  law  of  nations;  the  latter  is  an  offense  under  the  statutes  of  a 
particular  State  or  nation.  Under  the  former,  the  element  of  intent  must  be 
broad  enough  to  cover  property  of  every  nation  ; under  the  latter,  the  offense  is 
made  out  by  showing  an  intent  to  depredate  upon  the  property  of  the  particular 
State,  to  the  exclusion  of  all  others.  A pirate,  according  to  the  general  defini- 
tion, offends  against  the  universal  laws  of  society;  he  is  deemed  an  enemy  of  the 
human  race,  making  war  indiscriminately  upon  all  mankind,  and  the  vessels  of 
every  nation  have  a right  to  seize  and  punish  him.  National  piracy  is  defined  to 
be  “ the  offense  of  depredating  on  the  seas,  without  being  authorized  by  any 
sovereign  State,  or  with  commissions  from  different  sovereigns  at  war  with  each 
other.”  * It  is  a rule  of  international  law,  that  in  a state  of  war  existing  between 
two  nations,  either  may  commission  “ privateers,”  or  private  armed  vessels  to 
carry  on  war  against  the  enemy  on  the  high  seas;  and  such  commission  will  afford 
protection,  even  in  the  courts  of  the  enemy’s  country,  against  a charge  of  robbery 
or  piracy. 

Congress,  under  the  power  given  by  the  Constitution,^  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and  offenses  against  the  law  of 
nations,  passed  an  act,  on  the  30th  of  April,  1790,  entitled  “An  Act  for  the  pun- 
ishment of  certain  crimes  against  the  United  States,”  commonly  known  as  “ The 
Crimes  Act.”  On  the  15th  of  May,  1820,  an  additional  law  was  passed  making 
further  provision  for  punishing  the  crime  of  piracy.  The  third  section  of  the  act 
of  1820  declares,  “ that,  if  any  person  shall,  upon  the  high  seas,  commit  the 
crime  of  robbery,  in  or  upon  any  ship  or  vessel,  or  upon  any  ship’s  company  of 
any  ship  or  vessel,  or  the  lading  thereof,  such  person  shall  be  adjudged  to  be  a 
pirate.”  Under  this  statute,  a commission  from  a State  or  nation  at  war  with  an- 
other, would,  according  to  the  law  of  nations,  constitute  a defense. 

The  ninth  section  of  the  act  of  1790  declares,  “ that  if  any  citizen  shall  com- 


^ Wheaton’s  Int.  Law,  p.  184. 


^ Article  i,  sec.  8. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


345 


mit  any  piracy  or  robbery  aforesaid,  or  any  act  of  hostility  against  the  United 
States,  or  any  citizen  thereof,  upon  the  high  seas,  under  color  of  any  commission 
from  any  foreign  prince  or  State,  or  on  pretense  of  authority  from  any  person, 
such  offender  shall,  notwithstanding  the  pretense  of  any  such  authority,  be 
deemed,  adjudged,  and  taken  to  be  a pirate,  felon  and  robber.”  It  was  claimed 
by  the  prisoners,  that  this  statute  could  only  apply  to  acts  done  under  authority 
of  a foreign  power  or  person;  that,  if  Jefferson  Davis  represented  that  power,  or 
person,  then  the  defendants  were  subjects  of  that  power,  not  citizens  of  the 
United  States,  and  not  within  the  act;  if  he  did  not  represent  a foreign  power, 
the  act  had  no  application. 

The  indictment  charged  the  prisoners  with  the  robbery  of  an  American  ves- 
sel upon  the  high  seas,  and  contained  ten  counts  : the  first  five  were  framed  un- 
der the  act  of  1820;  the  other  five  under  the  ninth  section  of  the  act  of  1790, 
charging  all  the  prisoners  with  being  citizens,  and  with  having  committed  the 
acts  set  forth  on  pretense  of  authority  from  one  Jefferson  Davis.  On  behalf  of 
the  foreign  defendants,  it  was  claimed,  that  it  was  a settled  principle  of  interna- 
tional law  that  one  nation  could  not  make  that  piracy  which  was  not  piracy  under 
the  law  of  nations,  except  so  far  as  their  own  subjects  were  concerned,*  and 
hence  there  could  be  no  conviction  under  the  act  of  1820,  since  there  was  no  in- 
tent to  seize  any  but  American  vessels.  It  was  further  claimed,  in  behalf  of  all 
the  defendants,  that  the  commission  from  Jefferson  Davis  was  a defense,  because 
the  right  of  revolution  for  cause  was  a legal  right,  and  the  position  occupied  by 
the  Confederacy  towards  the  United  States  was  such  that  they  were  justified  in 
adopting  the  means  of  retaliation  or  aggression  recognized  in  a state  of  war,  and 
entitled  to  all  the  privileges  and  immunities  existing  under  the  laws  of  war. 

The  questions  presented  upon  this  trial,  it  will  be  seen,  were  of  the  first 
magnitude  and  importance,  and  required  for  their  solution  a familiarity  with  the 
most  profound  legal  principles  and  the  highest  professional  knowledge.  The 
case  was  conducted  by  distinguished  counsel,  among  whom  were  some  of  the 
ablest  lawyers  in  the  land.  E.  Delafield  Smith,  United  States  District  Attorney, 
was  assisted  by  William  M.  Evarts,  Samuel  Blatchford  (now  U.  S.  Circuit  Judge), 
and  Ethan  Allen;  for  the  defense  appeared  Jeremiah  Larocque,  Daniel  Lord, 
James  T.  Brady,  Algernon  S.  Sullivan,  Joseph  H.  Dukes,  Isaac  Davega,  and 
Maurice  Mayer.  Hon.  Judges  Nelson  and  Shipman  presided. 

The  character  and  genius  of  James  T.  Brady  made  him  the  most  popular 
advocate  of  his  time,  for  in  him  were  combined  the  most  superb  qualities  of  the 
head  and  heart.  The  following  remark  illustrates  his  genuine  manhood  : “I 
honor  greatness,  genius  and  achievements,”  he  said,  “but  I honor  more  those 
qualities  in  a man’s  nature  which  show  that,  while  he  holds  a proper  relation  to 
the  Deity,  he  has  also  a just  estimate  of  his  fellow-men,  and  a kindly  feeling 
towards  them.  I would  rather  have  it  said  of  me,  after  death,  by  my  brethren 
of  the  bar,  that  they  were  sorry  I had  left  their  companionship,  than  to  be  spoken 
of  in  the  highest  strains  of  gifted  panegyric.”  He  was  esteemed  by  all,  but  to 
those  who  were  so  fortunate  as  to  share  his  acquaintance,  he  was  endeared  by 
the  warmest  ties  of  friendship  and  affection.  That  man  will  always  be  loved 

* Wheaton’s  Int.  Law,  vol.  6,  p.  85;  i Kent’s  Com.  p.  195;  i Phillemore, 
381;  Hefter  on  Modern  Int.  Law  (4th  ed.),  p.  191. 


046 


SPEECH  OF  JAMES  T.  BRADY 


who  believed,  as  did  Mr.  Brady,  that  the  highest,  purest,  and  most  unselfish  of 
all  earthly  affections  is  man’s  love  for  man.  He  was  a successful  and  accom- 
plished lawyer.  His  intellectual  power  will  appear  upon  a perusal  of  his  very 
able  and  interesting  address  for  the  defense  of  this  case.  After  all  the  other 
counsel  for  the  prisoners  had  spoken,  Mr.  Brady  summed  up  as  follows  : 

May  it  please  the  Court, — Gentlemen  of  the  Jury: — I feel 
quite  certain  that  all  of  you  are  much  satisfied  to  find  that  this 
important  trial  is  rapidly  drawing  to  a close;  and  I think  it  would 
be  unbecoming  in  me,  as  one  of  the  counsel  for  the  accused,  to 
proceed  a step  farther  in  my  address  to  you  without  acknowledging 
to  the  court  the  gratitude  which  we  feel  for  their  kindness  in  hear- 
ing so  largely  discussed  the  grave  legal  questions  involved  in  this 
controversy;  to  the  jury,  for  their  unvarying  patience  throughout 
the  investigation;  and  to  our  learned  opponents,  for  the  frank  and 
open  manner  in  which  the  prosecution  has  been  conducted.  Our 
fellow-citizens  at  the  South — certainly  that  portion  of  them  who 
cherish  affection  for  this  part  of  the  Union — will  find  in  the  course 
of  this  trial  most  satisfactory  evidence  that  respect  for  law,  free- 
dom of  speech,  freedom  of  discussion,  liberty  of  opinion,  and  the 
rights  of  all  our  countrymen,  here  exist  to  the  fullest  extent.  All 
of  us  have  heretofore  been  connected  with  interesting  and  exciting 
trials.  I am  warranted  in  saying  that,  considering  the  period  at 
which  this  trial  has  occurred,  and  all  the  facts  and  circumstances 
attending  it,  the  citizens  of  New  York  have  reason  to  be  proud  that 
such  a trial  could  proceed  without  one  word  of  acerbity,  without 
one  expression  of  angry  feeling,  or  one  improper  exhibition  of 
popular  sentiments. 

I.  Piracy. — Nature  and  character  of  the  crime. 

The  great  question  for  this  jury,  absorbing  all  others,  is:  Have 
the  twelve  men  named  in  the  indictment,  or  has  either  of  them, 
committed  piracy,  and  thus  incurred  the  penalty  of  death  ? It  is 
a very  interesting  inquiry,  gentlemen — interesting  in  its  historical, 
national,  judicial  and  political  aspects;  interesting,  too,  because  of 
the  character  and  description  of  the  accused.  We  discover  that 
eight  of  them  are  foreigners,  who  have  never  been  naturalized,  and 
do  not  judicially  come  under  the  designation  of  citizens  of  the 
United  States.  Four  of  them  are  what  we  call  natural-born  citi- 
zens: two  from  the  State  of  South  Carolina,  one  from  North  Caro- 
lina, and  one  from  Philadelphia.  Two  of  them  are  in  very  feeble 
health;  and  I am  sorry  to  say,  some  are  not  yet  of  middle  age, 


IN  DIZFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


347 


some  quite  young,  including  Passalaigue,  who  has  not  yet  attained 
his  eighteenth  year.  I know  my  fellow-citizens  of  New  York  quite 
well  enough  to  be  quite  sure  that,  even  if  there  had  been  any  exhi- 
bition of  popular  prejudice,  or  feeling,  or  fury,  with  a view  to  dis- 
turb their  judgments  in  the  jury-box,  the  sympathy  that  arises 
properly  in  every  well-constituted  heart  and  mind,  in  favor  of  the 
accused,  their  relatives  and  friends,  would  overcome  any  such 
wrong  impulse  as  might  be  directed  to  deprive  them  of  that  fair 
trial  which,  up  to  this  point,  they  have  had,  and  which,  to  the  end, 
I know  they  will  have. 

Are  they  pirates  and  robbers  ? Have  they  incurred  the  penalty 
of  death  ? Gentlemen,  it  is  a little  curious  that,  during  the  present 
reign  of  Victoria,  a statute  has  been  passed  in  England  softening 
the  rigor  of  the  punishment  for  piracy,  and  subjecting  the  person 
found  guilty  to  transportation,  instead  of  execution,  unless  arms 
have  been  used  in  the  spoliation,  or  some  act  done  aggravating  the 
offense.  I have  used  the  term ‘‘ pirate,”  and  the  term  “ robber." 
There  is  another  which,  strangely  enough,  was  employed  by  a judge 
of  the  Vice- Admiralty  Court  in  South  Carolina,  in  1718,  who  calls 
these  pirates  and  robbers,  as  we  designate  them,  “ sea  thieves 
and  I am  very  glad  to  find  that  phrase,  because  the  words  robber 
and  pirate  have  fallen  into  mere  terms  of  opprobrium;  while  the 
word  “ thief  ” has  a significance  and  force  understood  by  every 
man.  You  know  what  you  thought  a “thief”  to  be  when  a boy, 
and  how  you  despised  him;  and  you  are  to  look  at  each  prisoner 
mentioned  in  this  indictment,  and  say,  on  your  consciences  as  men, 
in  view  of  the  facts  and  of  the  law,  as  expounded  by  the  learned 
court,  do  you  consider  that  the  word  “ thief  ” can  be  applied  to  any 
one  of  the  men  whom  I have  to  assist  in  defending  ? That  is  the 
great  practical  question  which  you  are  to  decide. 

Here  Mr.  Brady  briefly  adverted  to  the  question  of  jurisdiction,  as  having 
been  already  very  fully  discussed.  After  some  observations  on  the  case  of  Hicks, 
the  pirate,  he  continued  : 

2.  Piracy  under  the  law  of  nations,  and  under  the  acts 
OF  Congress. — The  “Enchantress”  case. 

This  indictment  charges  two  kinds  of  offense:  Piracy,  as  that 
crime  existed  by  the  law  of  nations,  which  law  may  be  said  to  have 
been  incorporated  into  the  jurisprudence  of  the  United  States;  and 
piracy  under  the  ninth  section  of  the  act  of  1790.  Piracy  by  the 
law  of  nations  is  defined  by  Wheaton,  the  great  American  com- 


348 


SPEECH  OF  JAMES  T.  BRADY 


mentator  on  international  law,  on  page  184  of  his  treatise  on  that 
subject.  ‘‘Piracy,”  says  that  eminent  gentleman,  who  was  an 
ornament  to  the  country  which  gave  him  birth,  and  an  honor  to  my 
profession,  “piracy  is  defined  by  the  text-writers  to  be  the  offense 
of  depredating  on  the  seas,  without  being  authorized  by  any  sov- 
ereign State,  or  with  commissions  from  different  sovereigns  at  war 
with  each  other.”  The  last  part  of  the  definition  you  need  not 
trouble  yourselves  about,  as  I only  read  it  so  as  not  to  quibble  the 
text.  I will  read  the  passage  without  the  latter  part.  “ Piracy  is 
defined  to  be  the  offense  of  depredating  on  the  seas,  without  being 
authorized  by  any  sovereign  State.”  Other  definitions  will  here- 
after be  suggested. 

This  leads  me  to  remark  upon  certain  judicial  proceedings  in 
Philadelphia  against  men  found  on  board  the  Southern  privateer 
‘■Jefferson  Davis,”  and  who  were  convicted  of  piracy  for  having 
seized  and  sent  away  as  a prize  the  “ Enchantress.”  Now,  my  way 
of  dealing  with  juries  is  to  act  with  them  while  in  the  jury-box  as 
if  they  were  out  of  it.  I never  imitate  that  bird  referred  to  by  the 
gentleman  who  preceded  me — the  ostrich  which  supposes  that  when 
he  conceals  his  head,  his  whole  person  is  hidden  from  view.  I 
know,  and  every  gentleman  present  knows,  that  a jury  in  the  city 
of  Philadelphia  has  convicted  the  men  arrested  on  the  “ Jefferson 
Davis  ” of  piracy.  We  are  a nation  certainly  distinguished  for 
three  things:  for  newspapers,  politics,  and  tobacco.  I do  not  know 
that  the  Americans  could  present  their  social  individualities  by  any 
better  signs.  Everybody  reads  the  papers,  and  everybody  has  a 
paper  given  him  to  read.  The  hackman  waiting  for  his  fare  con- 
sumes his  leisure  time  perusing  the  paper.  The  apple-woman  at 
her  stall  reads  the  paper.  At  the  breakfast  table,  the  dinner  table, 
and  the  supper  table,  the  paper  is  daily  read.  I sometimes  take 
my  meals  at  Delmonico’s,  and  have  there  observed  a gentleman 
who,  while  refreshing  himself  with  a hasty  meal,  takes  up  the  news- 
paper, places  it  against  the  castor,  and  eats,  drinks  and  reads  all  at 
the  same  time.  Gentlemen,  I say  that  a people  so  addicted  to 
newspapers  must  have  ascertained  that  the  men  in  Philadelphia 
were  convicted;  and  how  the  jury  could  have  done  otherwise  upon 
the  charge  of  Justices  Grier  and  Cadwalader,  I am  incapable  of 
perceiving.  I have  the  pleasure  of  knowing  both  those  eminent 
judges.  My  acquaintance  with  Judge  Cadwalader  is  slight,  it  is 
true,  but  of  sufficient  standing  to  insure  him  the  greatest  respect 
for  his  learning  and  character.  With  Judge  Grier  the  acquaintance 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


340 


Is  of  longer  duration;  and  as  he  has  always  extended  to  me  in  pro- 
fessional occupations  before  him  courtesies  which  men  never  for- 
get, I cannot  but  speak  of  him  with  affection.  I have  nevertheless 
something  to  say  about  the  law  laid  down  by  those  judges  on  that 
case.  No  question  on  the  merits  was  left  to  the  jury,  as  I under- 
stand the  instructions.  The  jurymen  were  told  that  if  they  believed 
the  testimony,  then  the  defendants  were  guilty  of  piracy. 

3.  The  question  of  intent  one  of  fact  for  the  jury. 

Now,  as  to  the  aspect  of  this  case  in  view  of  piracy  by  the  law  of 
nations,  the  question  for  the  jury  is,  in  the  first  place:  Did  these 
defendants,  in  the  act  of  capturing  the  Joseph,  take  her  by  force, 
or  by  putting  the  captain  of  her  in  fear,  with  the  intent  to  steal  her  ? 
That  is  the  question  as  presented  by  the  indictment,  and  in  order 
to  convict  under  either  of  the  first  five  counts,  the  jury  must  be 
satisfied,  beyond  all  reasonable  doubt,  that,  in  attacking  the 
Joseph,  the  defendants  were  actuated  as  described  in  the  indict- 
ment, from  which  I read  the  allegation  that  they,  “with  force  and 
arms,  piratically,  feloniously,  and  violently,  put  the  persons  on 
board  in  personal  fear  and  danger  of  their  lives,  and  in  seizing  the 
vessel  did,  as  aforesaid,  seize,  rob,  steal  and  carry  her  away.”  In 
this  the  indictment  follows  the  law.  Another  question  of  fact,  in 
the  other  aspect  of  the  case,  under  the  ninth  section  of  the  act  of 
1790,  will  be,  substantially,  whether  the  existence  of  a civil  war  is 
shown.  That  involves  inquiry  into  the  existence  of  the  Confed- 
erate States  as  a de  facto  government  or  as  a de  jure  government. 

The  animus  fura7idi,  so  often  mentioned  in  this  case,  means 
nothing  but  the  intent  to  steal.  The  existence  of  that  intent  must 
be  found  in  the  evidence,  before  these  men  can  be  called  pirates, 
robbers,  or  thieves;  and  whether  such  intent  did  or  did  not  exist, 
is  a question  entirely  for  you. 

To  convict  under  the  ninth  section  of  the  act  of  1790,  the  pros- 
ecution must  prove  that  the  defendants,  being  at  the  time  of  such 
offense  citizens  of  the  United  States  of  America,  did  something 
which  by  that  act  is  prohibited.  You  will  bear  in  mind  that  the 
act  of  1790,  in  its  ninth  section,  has  no  relation  except  to  American- 
born  citizens,  and  as  to  that  part  of  the  indictment  the  eight  for- 
eigners charged  are  entirely  relieved  from  responsibility. 

Mr.  Brady  here  read  the  special  verdict  in  the  case  of  U.  S.  v.  Smith  (5 
Wheat.  104),  as  illustrating  what  piracy  is,  and  continued : 


350 


SPEECH  OF  JAMES  T.  BRADY 


According  to  the  evidence  in  the  case  of  Smith,  the  defendants 
were  clearly  pirates.  They  had  no  commission  from  any  govern- 
ment or  governor,  and  were  mere  mutineers,  who  had  seized  a ves- 
sel illegally,  and  then  proceeded  to  seize  others  without  any  pre- 
tense or  show  of  authority,  but  with  felonious  intent.  For  these 
acts  they  were  justly  convicted. 

4.  Intent  can  not  be  inferred,  but  must  be  proved. 

Now,  we  say,  that  this  felonious  intent  as  charged  against  these 
defendants,  must  be  proved.  But  what  say  my  learned  friends  op- 
posed ? Why  (in  effect),  that  it  need  not  be  proved  to  a jury  by 
any  evidence,  but  must  be  inferred,  as  a matter  of  law,  or  by  the 
jury  first,  from  the  presumption  that  every  man  knows  the  law;  and 
these  men,  in  this  view,  are  pirates — though  they  honestly  believed 
that  there  was  a valid  government  called  the  Confederate  States, 
and  that  they  had  a right  to  act  under  it — because  they  ought  to 
have  known  the  law;  ought  to  have  known  that,  although  the  Con- 
federate States  had  associated  for  the  purpose  of  forming,  yet  they 
had  not  completed  a government;  ought  to  have  known  that, 
though  Baker  had  a commission  signed  by  Jefferson  Davis,  the  so- 
called  President  of  the  Confederate  States,  under  which  he  was 
authorized  to  act  as  a privateer,  yet  the  law  did  not  recognize  the 
commission. 

There  is,  indeed,  a rule  of  law,  said  to  be  essential  to  the  exist- 
ence of  society,  that  all  men  must  be  taken  to  know  the  law,  ex- 
cept, I might  add,  lawyers  and  judges,  who  seldom  agree  upon  any 
proposition  until  they  must. 

The  whole  judicial  system  is  founded  upon  the  theory  that 
judges  will  err  about  the  law,  and  thus  we  have  the  courts  of  review 
to  correct  judicial  mistakes  and  to  establish  permanent  principles. 
Yet  it  is  true  that  every  man  is  presumed  to  know  the  law;  and  the 
native  of  Manilla  (one  of  the  parties  here  charged).  Loo  Foo^  or 
whatever  his  name  may  be,  who  does  not,  probably,  understand 
what  he  is  here  for,  is  presumed  to  know  the  law  as  well  as  one  of 
us.  If  he  did  not  know  it  better,  considering  the  differences  be- 
tween us,  he  might  not  be  entitled  to  rate  high  as  a jurist.  One  of 
my  brethren  read  to  you  an  extract  from  a recent  German  work,^ 
which  presents  a different  view  of  this  subject  as  relates  to  foreign 
subjects  in  particular  cases.  I was  happy  to  hear  Mr.  Mayer  on 
the  law  of  this  case,  more  particularly  as  he  declared  himself  to  be 


^ Hefter  on  Modern  Int.  Law. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


351 


a foreign-born  citizen;  for  it  is  one  of  the  characteristics  of  this 
government — a characteristic  of  our  free  institutions — that  no  dis- 
tinction of  birth  or  creed  is  permitted  to  stand  in  the  way  of  merit, 
come  from  what  clime  it  may. 

5.  Consequences  of  defendants’  acts  not  necessarily 

CRIMINAL. 

There  is  another  presumption.  Every  man  is  presumed  to  in- 
tend the  natural  consequences  of  his  own  acts.  Now,  what  are  the 
natural  consequences  of  the  acts  done  by  these  defendants  ? The 
law  on  this  point  is  illustrated  and  applied  with  much  effect  in 
homicide  cases.  Suppose  a man  has  a slight  contention  with  an- 
other, and  one  of  the  combatants,  drawing  a dagger,  aims  to  inflict 
a slight  wound,  say  upon  the  hand  of  the  other;  but,  in  the  struggle 
the  weapon  enters  the  heart,  and  the  injured  party  dies.  The  man 
is  arrested  with  the  bloody  dagger  in  his  hand,  the  weapon  by  which 
death  was  unquestionably  occasioned;  and  the  fact  being  estab- 
lished that  he  killed  the  deceased,  the  law  will  presume  the  act  to 
be  murder,  and  cast  upon  the  accused  the  burden  of  showing  that 
it  was  something  other  than  murder.^  I hope,  gentlemen,  to  see  the 
day  when  this  doctrine  of  law  will  no  longer  exist.  I never  could 
understand  how  the  presumption  of  murder  could  be  drawn  from 
an  act  equally  consistent  with  murder,  manslaughter,  justifiable  or 
excusable  homicide,  or  accident,  but  such  is  the  law,  and  it  must 
be  respected. 

I say,  that  neither  of  the  defendants  intended,  as  the  ordinary 
and  natural  consequence  of  his  act,  to  commit  piracy  or  robbery, 
though  what  he  did  might,  in  law,  amount  to  such  an  offense.  He 
intended  to  take  legal  prizes,  and  no  more  to  rob  than  the  man  in 
the  case  I supposed  designed  to  kill.  The  natural  consequences  of 
his  acts  were,  to  take  the  vessel  and  send  her  to  a port  to  be  adju- 
dicated upon  as  a prize. 

6.  Legal  presumption  of  intent  may  be  overcome. — 

Narration  of  facts. 

Now,  I state  to  my  learned  friends  and  the  court  this  proposi- 
tion: that,  though  a legal  presumption  as  to  intent  might  have  ex- 

’ Now,  under  the  New  York  statutes,  the  rule  is  changed.  The  law  no 
longer  presumes  malice  from  proof  of  killing  merely.  The  jury  must  determine 
the  grade  of  the  offense  from  all  the  evidence  of  the  case.  Stokes  v.  The  Peo- 
ple, 53  N.  Y.  164. 


352 


SPEECH  OF  JAMES  T.  BRADY 


isted  in  this  case,  if  the  prosecution  had  proved  merely  the  forcible 
taking,  yet  if,  in  making  out  a case  for  the  government,  any  fact  be 
elicited  which  shows  that  the  actual  intent  was  different  from  what 
the  law,  in  the  absence  of  such  fact,  would  imply,  the  presumption 
is  gone.  And  when  the  prosecution  made  their  witness  detail  a 
conversation  which  took  place  between  Captain  Baker  and  the  cap- 
tain of  the  Joseph,  with  reference  to  the  authority  of  the  former  to 
seize  the  vessel,  and  when  you  find  that  Captain  Baker  asserted  a 
claim  of  right,  that  overcomes  the  presumption  that  he  despoiled 
the  captain  of  the  Joseph  with  an  intent  to  steal.  The  animus 
furandi  must,  in  this  case,  depend  on  something  else  than  pre- 
sumption. I will  refer  you  for  more  particulars  of  the  law  on  this 
point  to  I Greenleaf  on  Evidence,  sections  13  and  14,  and  I make 
this  citation  for  another  purpose.  When  an  act  is  in  itself  illegal, 
sometimes,  if  not  in  the  majority  of  cases,  the  law  affixes  to  the 
party  the  intent  to  perpetrate  a legal  offense.  But  this  is  not  the 
universal  rule.  In  cases  of  procuring  money  or  goods  under  false 
pretenses,  where  the  intent  is  the  essence  of  the  crime,  the  prosecu- 
tion must  establish  the  offense,  not  by  proving  alone  the  act  of  re- 
ceiving, but  by  showing  the  act  and  intent;  so  both  must  be  proved 
here. 

Now,  I ask,  has  the  prosecution  entitled  itself  to  the  benefit  of 
any  presumption  as  to  intent  ? What  are  the  facts — the  conceded 
facts  ? Baker,  and  a number  of  persons  in  Charleston,  did  openly 
and  notoriously  select  a vessel  called  the  “ Savannah,”  then  lying 
in  the  stream,  and  fitted  her  out  as  a privateer.  Baker,  in  all  of 
these  proceedings,  acted  under  the  authority  of  a commission  signed 
by  Jefferson  Davis,  styling  and  signing  himself  President  of  the 
Confederate  States  of  America.  Baker  and  his  companions  then 
went  forth  as  privateersmen,  and  in  no  other  capacity,  for  the  pur- 
pose of  despoiling  the  commerce  of  the  United  States,  and  with 
the  strictest  injunction  not  to  meddle  with  the  property  of  any  other 
country.  The  instructions  were  clear  and  distinct  on  this  head,  as 
you  know  from  having  heard  them  read.  They  went  to  sea  and 
overhauled  the  Joseph,  gave  chase  with  the  American  flag  flying — 
one  of  the  ordinary  devices  or  cheats  practiced  in  naval  warfare; 
a device  frequently  adopted  by  American  naval  commanders  to 
whose  fame  no  American  dare  affix  the  slightest  stigma.  On  near- 
ing the  Joseph,  the  Savannah  showed  the  secession  flag,  and  Baker 
requested  Captain  Meyer  to  come  on  board  with  his  papers.  The 
captain  asked  bv  what  authority,  and  received  for  answer:  “ The 


IX  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.' 


353 


authority  of  the  Confederate  States.”  The  captain  then  went  on 
board  with  his  papers,  when  Baker,  helping  him  over  the  side,  said: 
“ I am  very  sorry  to  take  your  vessel,  but  I do  so  in  retaliation 
against  the  United  States,  with  whom  we  are  at  war.”  Baker  put 
a prize  crew  on  board  the  Joseph,  and  sent  her  to  Georgetown;  the 
captain  he  detained  there  as  a prisoner.  She  was  then  duly  sub- 
mitted for  judgment  as  a prize.  These  are  the  facts  upon  which 
they  claim  that  piracy  at  common  law  is  established. 

7.  Larceny  and  trespass  distinguished. — Illustrations. 

My  learned  associate,  Mr.  Larocque,  cited  a number  of  cases  to 
show  that,  though  a man  might  take  property  of  another,  and  ap- 
propriate it  to  his  own  use,  yet  if  he  did  so  under  color  of  right, 
under  a bona  fide  impression  that  he  had  authority  to  take  the 
property,  he  would  only  be  a trespasser;  he  would  have  to  restore 
it  or  pay  the  value  of  it,  but  he  could  not  be  convicted  of  a crime 
for  its  conversion. 

Let  me  state  a case.  You  own  a number  of  bees.  They  leave 
your  land,  where  they  hived,  and  come  upon  mine,  and  take  refuge 
in  the  hollow  of  a tree,  where  they  deposit  their  honey.  They  are 
your  bees,  but  you  cannot  come  upon  my  land  to  take  them  away; 
and  though  they  are  in  my  tree,  I cannot  take  the  honey.  Such  a 
case  is  reported  in  our  State  adjudications.*  But,  suppose  that  I 
did  take  the  bees  and  appropriate  the  honey  to  my  own  use:  I 
might  be  unjustly  indicted  for  larceny,  because  I took  the  property 
of  another,  but  I am  not,  consequently,  a thief  in  the  eye  of  the 
law;  the  absence  of  intent  to  steal  would  insure  my  acquittal. 

That  is  one  illustration.  I will  mention  one  other,  decided  in 
the  South,  relating  to  a subject  on  which  the  South  is  very  strict 
and  very  jealous.  A slave  announced  to  a man  his  intention  to 
escape.  The  man  secreted  the  slave  for  the  purpose  of  aiding  his 
escape  and  effecting  his  freedom.  He  was  indicted  for  larceny,  on 
the  ground  that  he  exercised  a control  over  the  property  of  the 
owner  against  his'will.  The  court  held  that  the  object  was  not  to 
steal,  and  he  could  not  be  convicted.  In  Wheaton’s  Criminal  Pro- 
ceedings, page  397,  this  language  will  be  found,  and  it  is  satisfac- 
tory on  the  point  under  discussion:  “There  are  cases  where  taking 
is  no  more  than  a trespass.  Where  a man  takes  another’s  goods 

’ Goff  V.  Kilts,  15  Wend.  550;  and  see^’Gillet  v.  Mason,  7 Johns.  161;  Fer- 
guson V.  Miller,  i Cow.  243. 

23 


354 


SPEECH  OF  JAMES  T.  BRADY 


openly  before  him,  or  where,  having  otherwise  than  by  apparent 
robbery,  possessed  himself  of  them,  he  avows  the  fact  before  he  is 
questioned.  This  is  only  a trespass." 

Now  all  these  principles  are  familiar  and  simple,  and  do  not 
require  lawyers  to  expound  them,  for  they  appeal  to  the  practical 
sense  of  mankind.  It  is  certainly  a most  lamentable  result  of  the 
wisdom  of  centuries,  to  place  twelve  men  together  and  ask  them, 
from  fictions  or  theories,  to  say,  on  oath,  that  a man  is  a thief  when 
every  one  of  them  knows  that  he  is  not.  If  any  man  on  this  jury 
thinks  the  word  pirate,  robber  or  thief  can  be  truly  applied  to 
either  of  these  defendants,  I am  very  sorry,  for  I think  neither  of 
them  at  all  liable  to  any  such  epithet. 

8.  The  letter  of  marque*  a valid  defense. 

But,  suppose  that  the  intent  is  to  be  inferred  from  the  act  of 
seizing  the  Joseph,  and  the  defendants  must  be  convicted,  unless 
justified  by  the  commission  issued  for  Captain  Baker,  let  us  then 
inquire  as  to  the  effect  of  that  commission.  We  say  that  it  pro- 
tects the  defendants  against  being  treated  as  pirates.  Whether  it 
does  or  not  depends  upon  the  question  whether  the  Confederate 
States  have  occupied  such  a relation  to  the  United  States  of  America 
that  they  might  adopt  the  means  of  retaliation  or  aggression  recog- 
nized in  a state  of  war. 

It  is  our  right  and  duty,  as  advocates,  to  maintain  that  the  con- 
federate government  was  so  situated,  and  to  support  the  proposi- 
tion by  reference  to  the  political  and  judicial  history  and  precedents 
of  the  past,  stating  for  these  men  the  principles  and  views  which 
they  and  their  neighbors  of  the  revolting  States  insist  upon;  our 
personal  opinions  being  in  no  wise  called  for,  nor  important,  nor 
even  proper,  to  be  stated  at  this  time  and  in  this  place. 

If  it  can  be  shown  that  the  Confederate  States  occupy  the  same 
position  towards  the  government  of  the  United  States  that  the 
thirteen  revolted  colonies  did  to  Great  Britain  in  the  war  of  the 
revolution,  then  these  men  cannot  be  convicted  of  piracy. 

I do  not  ask  you  to  decide  that  the  Southern  States  had  the 
right  to  leave  the  Union,  or  secede,  or  to  revolt — to  set  on  foot  an 
insurrection,  or  to  perfect  a rebellion.  That  is  not  the  question 
here.  I will  place  before  the  jury  such  views  of  law  and  of  his- 
tory as  bear  upon  the  case,  endeavoring  not  to  go  over  the  ground 


* For  a copy  of  the  letter,  see  Appendix,  p.  722. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.” 


355 


occupied  by  my  associates.  I will  refer  you  to  a small  book  pub- 
lished here  in  1859,  entitled  “The  History  of  New  York  from  the 
Earliest  Time,”  a very  reliable  and  authentic  work.  In  this  book 
I find  a few  facts  to  which  I will  call  your  attention,  one  of  which 
may  be  unpleasant  to  some  of  our  friends  from  the  New  England 
States,  for  we  find  that  New  York,  so  far  as  her  people  were  con- 
cerned— exclusive  of  the  authorities — was  in  physical  revolt  against 
the  parent  government  long  before  our  friends  in  New  England, 
some  of  whom  often  feel  disposed  to  do  just  what  they  please,  but 
are  not  quite  willing  to  allow  others  the  same  privilege. 

9.  The  “liberty  boys”  of  New  York  before  the 

REVOLUTION. 

I will  refer  to  it  to  show  you  what  was  the  condition  of  things  long 
before  the  4th  of  July,  1776,  and  to  show  that,  though  we  now  hurl 
our  charges  against  these  men  as  pirates — who  never  killed  any- 
body, never  tried  to  kill  anybody;  who  never  stole  and  never  tried 
to  steal — yet  the  men  of  New  York  city  who  committed,  under  the 
name  of  “ Liberty  Boys,  ”what  England  thought  terrible  atrocities,  in 
New  York,  were  never  touched  by  justice,  not  even  so  heavily  as  if 
a feather  from  the  pinion  of  the  humming  bird  had  fallen  upon 
their  heads.  I find  that,  about  the  year  1765,  our  people  here  be- 
gan to  grumble  about  the  taxes  and  imposts  which  Great  Britain 
levied  upon  us.  And  you  know,  though  the  causes  of  the  revolu- 
tionary war  are  set  forth  with  much  dignity  in  the  Declaration  of 
Independence,  the  contest  originated  about  taxes.  That  was  the 
great  source  of  disaffection,  directing  itself  more  particularly  to 
the  matter  of  tea,  and  which  led  to  the  miscellaneous  party  in  Bos- 
ton, at  which  there  were  no  women  present,  however,  and  where 
salt  water  was  used  in  the  decoction.  I find  that  the  governor  of 
the  city  had  fists,  arms,  and  all  the  means  of  aggression  at  his  com- 
mand; but  at  length,  happily  for  us,  the  government  sent  over  a 
young  gentleman  to  rule  us  (Lord  Monckford),  who,  when  he  did 
come,  appears  to  have  been  similar  in  habits  to  one  of  the  accused, 
who  is  described  as  being  always  idle.  The  witness  for  the  pros- 
ecution explained  that  separate  posts  and  duties  were  assigned  to 
each  of  the  crew  of  the  Savannah;  one  fellow,  he  said,  would  do 
nothing.  But  he  will  be  convicted  of  having  done  a good  deal,  if 
the  prosecution  prevail.  A state  of  rebellion  all  this  time  and 
afterwards  existed  in  this  particular  part  of  the  world,  until  the 
British  came  and  made  themselves  masters  of  the  city.  In  the 


356 


SPEECH  OF  JAMES  T.  BRADY 


course  of  the  acts  then  committed  by  the  citizens,  and  which  the 
British  government  called  an  insurrection,  a tumultuous  rebellion 
and  revolution,  they  offered,  or  it  was  said  they  offered,  an  indig- 
nity to  an  equestrian  statue  of  George  III.  The  British  troops,  in 
retaliation,  and  being  grossly  offended  at  the  conduct  of  Pitt,  who 
had  been  a devoted  friend  of  the  colonists,  mutilated  the  statue  of 
him  which  stood  on  Wall  street.  The  remains  of  the  statue  are 
still  with  us,  and  can  be  seen  at  the  corner  of  West  Broadway  and 
Franklin  street,  where  it  is  preserved  as  a relic  of  the  past — a grim 
memento  of  the  perfect  absurdity  of  charging  millions  of  people 
with  being  all  pirates,  robbers,  thieves,  and  marauders. 

When  the  British  took  possession  of  this  city,  they  had  at  one 
time  in  custody  five  thousand  persons.  That  was  before  any  formal 
declaration  of  independence;  before  the  formation  of  a government 
de  jure  or  de  facto;  and  yet  did  they  ever  charge  any  of  the  prison- 
ers with  being  robbers  ? Not  at  all.  Was  this  from  any  kindness 
or  humane  spirit  ? Not  at  all:  for  they  adopted  all  means  in  their 
power  to  overcome  our  ancestors.  The  eldest  son  of  the  Earl  of 
Chatham  resigned  his  commission,  because  he  would  not  consent 
to  fight  against  the  colonies.  The  government  did  not  hesitate  to 
send  to  Germany  for  troops.  They  could  not  get  sufficient  at  home. 
The  Irish  would  not  aid  them  in  the  fight.  The  British  did  not 
even  hesitate  to  employ  Indians;  and  when,  in  Parliament,  the  Secre- 
tary of  State  justified  himself,  saying  that  they  had  a perfect  right 
to  employ  “ all  the  means  God  and  nature  ” gave  them,  he  was  elo- 
quently rebuked.  Even,  with  all  this  hostility,  such  a thing  was 
never  thought  of  as  to  condemn  men,  when  taken  prisoners,  and 
hold  them  outside  that  protection  which,  according  to  the  law  of 
nations,  should  be  extended  to  men  under  such  circumstances,  even 
though  in  revolt  against  the  government. 

lo.  Rebellion  as  distinguished  from  revolution. 

In  October,  1774,  the  king,  in  his  message  to  Parliament,  said 
that  a most  daring  spirit  of  resistance  and  disobedience  to  the  laws 
existed  in  Massachusetts,  and  was  countenanced  and  encouraged 
in  others  of  his  colonies. 

Now,  I want  you  to  keep  your  minds  fairly  applied  to  the  point, 
on  which  the  court  will  declare  itself,  as  to  whether  I am  right  in 
saying,  that  the  day  when  the  message  was  sent  to  Parliament,  the 
colonies  occupied  towards  the  old  government  a position  similar  to 
that  of  the  Confederate  States  in  the  hour  of  revolt  to  the  United 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.”  357 


States.  But  we  will  possibly  see  that  the  Confederate  States  occu- 
py a stronger  position. 

In  the  course  of  the  discussion  which  ensued  upon  the  message, 
the  famous  Wilkes  remarked:  “ Rebellion,  indeed,  appears  on  the 
back  of  a flying  enemy;  but  revolution  flames  on  the  breastplate  of 
a victorious  warrior.” 

If  an  illegal  assemblage  sets  itself  up  in  opposition  to  the  munic- 
ipal government,  it  is  a mere  insurrection,  though  ordinary  officers 
of  the  law  be  incapable  of  quelling  it,  and  the  military  power  has 
to  be  called  out.  That  is  one  thing.  But  when  a whole  State 
places  itself  in  an  attitude  of  hostility  to  the  other  States  of  a con- 
federacy, assumes  a distinct  existence,  and  has  the  power  to  main- 
tain independence,  though  only  for  a time,  that  is  quite  a different 
affair. 

We  remember  how  beautifully  expressed  is  that  passage  of  the 
Irish  poet,  so  familiar  to  all  of  us,  and  especially  to  those  who,  like 
myself,  coming  from  Irish  ancestry,  know  so  well  what  is  the  name 
and  history  of  rebellion: 

“ Rebellion — foul,  dishonoring  word, 

Whose  wrongful  blight  so  oft  hath  stained 
The  holiest  cause  that  tongue  or  sword 
Of  mortal  ever  lost  or  gained  ! 

Plow  many  a spirit  born  to  bless 
Has  sunk  beneath  thy  withering  bane, 

Whom  but  a day’s — an  hour’s  success, 

Had  wafted  to  eternal  fame  ! ” 

A remarkable  instance,  illustrating  the  sentiment  of  this  pas- 
sage, is  found  in  the  history  of  that  brave  man,  emerging  from  ob- 
scurity, stepping  suddenly  forth  from  the  common  ranks  of  men, 
whose  name  is  so  generally  mentioned  with  reverence  and  love,  and 
who  so  lately  freed  Naples  from  the  rule  of  a tyrant.  This  brave 
patriot  was  driven  from  his  native  land,  after  a heroic  struggle  in 
Rome.  History  has  recorded  how  he  was  followed  in  this  exile  by  a 
devoted  wife,  who  perished  because  she  would  not  desert  her  hus- 
band; and  how  he  came  to  this  country,  where  he  established  him- 
self in  business  until  such  time  as  he  saw  a speck  of  hope  glimmer 
on  the  horizon  over  his  lovely  and  beloved  native  land.  Then  he 
went  back  almost  alone.  Red-shirted,  like  a common  toiling  man, 
he  gathered  round  him  a few  trusty  followers  who  had  unlimited 
confidence  in  him  as  a leader,  and  accomplished  the  revolution 
which  dethroned  the  son  of  Bomba,  and  placed  Victor  Emanuel  iiv 


358 


SPEECH  OF  JAMES  T.  BRADY 


his  stead.  You  already  know  that  I speak  of  Garibaldid  And  yet, 
Garibaldi,  it  seems,  should  have  been  denounced  as  a pirate,  had 
the  sea  been  the  theater  of  his  failure;  and  a robber,  had  he  been 
unsuccessful  upon  land. 

What  do  you  think  an  eminent  man  said,  in  the  British  Parlia- 
ment, about  the  outbreak  of  our  revolution,  and  the  condition  of 
things  then  existing  in  America  ? “ Whenever  oppression  begins, 

resistance  becomes  lawful  and  right.”  Who  said  that  ? The  great 
associate  of  Chatham  and  Burke,  Lord  Camden.  At  that  time 
Franklin  was  in  Europe,  seeking  to  obtain  a hearing  before  a com- 
mittee of  parliament  in  respect  to  the  grievances  of  the  American 
people.  It  was  refused. 

The  Lords  and  Commons,  in  an  address  to  the  king,  declared 
in  express  terms,  that  a “ rebellion  actually  existed  in  Massachu- 
setts;” and  yet,  in  view  of  all  that,  no  legal  prosecution  of  any 
rebel  ever  followed.  So  matters  continued  till  the  war  effectively 
began,  Washington  having  been  appointed  commander-in-chief.' 
Then  some  Americans  were  taken  by  the  British  and  detained  as 
prisoners.  Of  this  Washington  complained  to  General  Gage,  then 
in  command  of  the  British  army.  Gage  returned  answer  that  he 
had  treated  the  prisoners  only  too  kindly,  seeing  that  they  were 
rebels,  and  that  “ their  lives,  by  the  law  of  the  land,  were  destined 
for  the  cord.”  Yet  not  one  of  them  so  perished. 

II.  The  right  of  revolution  a legal  right. 

In  view  of  these  things,  even  so  far  as  I have  now  advanced;  in 
view  of  the  sacrifices  of  the  southern  colonies  in  the  revolution; 
in  view  of  the  great  struggle  for  independence,  and  the  great  doc- 
trine laid  down,  that,  whenever  oppression  begins,  resistance  be- 
comes lawful  and  right — is  it  possible  to  forget  the  history  of  the 
past,  and  the  great  principles  which  gleamed  through  the  darkness 
and  the  perils  of  our  early  history  ? Are  we  to  assert  that  the  Con- 
stitution establishing  our  government  is  perfect  in  all  its  parts,  and 
stands  upon  a corner-stone  equivalent  to  what  the  globe  itself  might 
be  supposed  to  rest  on,  if  we  did  not  know  it  was  ever  wheeling 
through  space  ? Is  all  the  history  of  our  past,  its  triumphs  and  re- 
verses, and  the  glorious  consummation  which  crowned  the  efforts 

* Garibaldi’s  sympathies  were  not  with  the  Confederacy,  as  appears  by  his 
letter,  read  by  Mr.  Evarts,  in  his  reply.  See  post,  p.  419,  and  Appendix,  p.  723. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


359 


of  the  people,  all  alike  to  be  thrown  aside  now,  upon  the  belief 
that  we  have  established  a government  so  perfect,  and  a Union  so 
complete,  that  no  portion  of  the  States  can  ever,  under  any  cir- 
cumstances, secede,  or  revolt,  or  dispute  the  authority  of  the  others, 
without  danger  of  being  treated  as  pirates  and  robbers  ? Thej 
Declaration  of  Independence  has  never  been  repudiated,  I believe, 
and  I suppose  I have  a right  to  refer  to  it  as  containing  the  polit- 
ical creed  of  the  American  people.  I do  not  know  how  many 
people  of  the  old  world  agree  with  it,  and  a most  eminent  lawyer 
of  our  own  country  characterized  the  maxims  stated  at  its  com- 
mencement as  “ glittering  generalities.”  But  I believe  the  Ameri- 
can people  have  never  withdrawn  their  approbation  from  the  prin- 
ciples and  doctrines  it  declares.  Among  those  we  find  the  self- 
evident  truth,  that  man  has  an  inalienable  right  to  life,  liberty,  and 
the  pursuit  of  happiness;  that  it  is  to  secure  these  rights  that  gov- 
ernments are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed;  and  that  whenever  any  form  of 
government  becomes  destructive  of  those  ends,  it  is  right  and 
patriotic  to  alter  and  abolish  it,  and  to  institute  a new  government, 
laying  its  foundations  on  such  principles,  and  conferring  power  in 
such  a form,  as  to  them  may  seem  most  likely  to  secure  their  safety 
and  happiness.  Is  this  a mockery  ? Is  this  a falsehood  ? Have 
these  ideas  been  just  put  forward  for  the  first  time  ? There  has 
been  a dispute  among  men  as  to  who  should  be  justly  denominated 
the  author  of  this  document.  The  debate  may  be  interesting  to 
the  historian;  but  these  principles,  though  they  are  embodied  in 
the  Constitution,  were  not  created  by  it.  They  have  lived  in  the 
hearts  of  man  since  man  first  trod  the  earth.  I can  imagine  the 
time,  too,  when  Egypt  was  in  her  early  glory,  and  in  fancy  see  one 
of  the  poor,  miserable  wretches,  deprived  of  any  right  of  humanity, 
harnessed,  like  a brute  beast,  to  the  immense  stone  about  being 
erected  in  honor  of  some  monarch,  whose  very  name  was  destined 
to  perish.  I can  imagine  the  degraded  slave  pausing  in  his  loath- 
some toil  to  delight  over  the  idea  that  there  might  come  a time 
when  the  meanest  of  men  would  enjoy  natural  rights,  under  a gov- 
ernment of  the  multitude  formed  to  secure  them. 

Now,  what  says  Mr.  Blackstone,  the  great  commentator  on  the 
law  of  England,  when  speaking  of  the  revolution  which  dethroned 
James  II:  ‘‘Whenever  a question  arises  between  the  society  at 
large  and  any  magistrate  originally  vested  with  powers  originally 
delegated  by  that  society,  it  must  be  decided  by  the  voice  of  the 


360 


SPEECH  OF  JAMES  T.  BRADY 


society  itself.  There  is  not  upon  earth  any  other  tribunal  to  re- 
sort to.”  ^ 

Prior  to  the  23d  of  March,  1776,  the  Legislature  of  Massachu- 
setts authorized  the  issuing  of  letters  of  marque  to  privateers  upon 
the  ocean,  and  when  my  learned  friend,  Mr.  Lord,  in  his  remarks 
so  clear  and  convincing,  called  attention  to  the  lawfulness  of  pri- 
vateering, my  brother  Evarts  attempted  to  qualify  it  by  designating 
the  granting  of  letters  of  marque  as  reluctantly  tolerated,  and  as 
if  no  such  practice  as  despoiling  commerce  should  be  permitted, 
even  in  a state  of  war. 

I will  not  again  read  from  Mr.  Marcy’s  letter,  but  I will 
say  here  that  the  position  he  took  gratified  the  heart  of  the 
whole  American  people.  He  said,  in  substance:  If  you,  En- 
gland and  France,  have  the  right  to  despoil  commerce  with 
armed  national  vessels,  we  have  a right  to  adopt  such  means  of 
protection  and  retaliation  as  we  possess.  We  do  not  propose,  if 
you  make  war  upon  us,  or  we  find  it  necessary  to  make  war  upon 
you,  that  we,  with  a poor,  miserable  fleet,  shall  not  be  at  liberty  to 
send  out  privateers,  but  yield  to  you,  who  may  come  with  your 
steel-clad  vessels  and  powerful  armament  to  practice  upon  us  any 
amount  of  devastation.  No.  We  never  had  a navy  strong  enough 
to  place  us  in  such  a position  as  that  with  regard  to  foreign  powers. 
Look  at  it.  Do  you  think  that  France  or  England  has  any  feeling 
of  friendship  towards  this  country  as  a nation  ? I do  not  speak  of 
the  people  of  these  countries,  but  of  the  cabinets  and  governments. 
No.  Nations  are  selfish.  Nearly  all  the  laws  of  nations  are  founded 
on  interest.  Nations  conduct  their  political  affairs  on  that  basis. 
They  never  receive  laws  from  one  another,  not  even  against  crime. 
And  when  you  want  to  obtain  back  from  another  country  a man 
who  has  committed  depredations  against  society,  you  do  it  only  by 
virtue  of  a treaty,  and  from  no  love  or  affection  to  the  country  de- 
manding it.  And  if  this  war  continues  much  longer,  I,  for  one, 
entertain  the  most  profound  apprehension  that  both  these  powers, 
France  and  England,  will  combine  to  break  the  blockade,  if  they 
do  not  enter  upon  more  aggressive  measures.  If  they  for  a moment 
find  it  their  interest  to  do  so,  they  will,  and  no  power,  moral  oi 
physical,  can  prevent  them. 

I say,  then,  the  right  of  revolution  is  a right  to  be  exercised, 
not  according  to  what  the  government  revolted  against  may  think, 
but  according  to  the  necessities  or  the  belief  of  the  people  revolting. 


’ Black.  Com.  vol.  i,  p.  211. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.”  3C1 


If  you  belonged  to  a State  which  was  in  any  way  deprived  of  its 
rights,  the  moment  that  oppression  began  resistance  became  a duty. 
A slave  does  not  ask  his  master  when  he  is  to  have  his  freedom,  but 
he  strikes  for  it  at  the  proper  opportunity.  A man  threatened  with 
death  at  the  hands  of  another,  does  not  stop  to  ask  whether  he  has 
a right  to  slay  his  assailant  in  self-defense.  If  self-preservation  is 
the  first  law  of  individuals,  so  also  is  it  of  masses  and  of  nations. 
Therefore,  when  the  American  Colonies  made  up  their  minds  to 
achieve  independence,  whether  their  reasons  were  sufficient  or  not, 
they  did  not  consent  to  have  the  question  decided  by  Great  Britain, 
but  at  once  decided  it  for  themselves.  Very  early  in  our  history, 
in  1778,  France  recognized  the  American  government.  England, 
as  you  know,  complained,  and  the  French  government  sent  back 
an  answer,  saying:  Yes,  we  have  formed  a treaty  with  this  new  gov- 
ernment; we  have  recognized  it,  and  you  have  no  right  to  com- 
plain; for  you  remember,  England,  said  France,  that  during  the 
reign  of  Elizabeth,  when  the  Netherlands  revolted  against  Spain, 
you,  in  the  first  place,  negotiated  secret  treaties  with  the  revolution- 
ists, and  then  recognized  them;  but,  when  Spain  complained  of 
this,  you  said  to  Spain:  The  reasons  which  justify  the  Netherlands 
in  their  revolt  entitle  them  to  our  support.  Was  success  necessary  ? 
Was  the  doctrine  of  our  opponents  correct,  that,  though  people 
may  be  in  absolute  revolt  against  the  parent  government,  with  an 
army  in  the  field,  and  in  exclusive  possession  of  the  territories  they 
occupy,  yet  they  have  no  right  to  be  recognized  by  the  law  of  na- 
tions, and  are  not  entitled  to  the  humanities  that  accompany  the 
conditions  of  a war  between  foreign  powers  ? Is  success  neces- 
sary ? Why  was  it  not  necessary  in  the  case  of  the  colonies  when 
recognized  by  France?  Why  not  necessary  in  the  case  of  the 
Netherlands  when  recognized  by  England  ? Never  has  been  put 
forward  such  a doctrine  for  adjudication  since  the  days  of  Ogden 
and  Smith,  tried  in  this  city  in  1806. 

Here  Mr.  Brady  referred  to  the  argument  of  Thomas  Addis  Emmett,  in  de- 
fense of  Smith  and  Ogden,  charged  with  aiding  General  Miranda  and  the  people 
of  Caraccas  in  a revolt  against  Spain,  as  showing  that  the  right  of  revolution 
rested  upon  sound  legal  principles.  He  then  cited  extracts  from  a work  of  James 
D.  Torrey  on  “ The  Southern  Rebellion,  and  the  War  for  the  Union,”  showing 
that  the  view  taken  by  the  South  was  analogous  to  the  notions  entertained  by 
New  England  in  the  war  of  1812,  and  could  not  be  considered  as  novel  or  wicked. 
He  then  proceeded : 


362 


SPEECH  OF  JAMES  T.  BRADY 


12.  Secession  synonymous  with  revolution  ; right 

SYNONYMOUS  WITH  POWER. 

Now,  this  enables  me  to  repeat,  with  a clearer  view  derived 
from  history,  the  proposition  that  the  Confederate  States  are — un- 
der the  law  of  nations,  and  the  principles  embodied  in  the  Decla- 
ration of  Independence,  sustained  in  the  revolution,  and  recog- 
nized by  our  people — in  a condition  not  distinguishable  from  that 
of  the  colonies  in  1776,  except  that,  if  there  be  a difference,  the 
position  of  the  confederates,  in  reference  to  legality,  as  a judicial 
question,  is  more  justifiable,  as  it  is  certainly  more  formidable. 
This  word  “secession”  is,  after  all,  only  a word;  a word,  as  Mr. 
Webster  said  in  one  of  his  great  speeches,  answering  Mr.  Calhoun, 
of  fearful  import;  a word  for  which  he  could  not,  according  to  his 
views,  too  strongly  express  condemnation.  Tut  whether  you  use 
the  word  “secession,”  or  the  familiar  expression,  “going  out  of  the 
Union,”  or,  “not  consenting  to  remain  in  the  Union,”  the  idea  is 
one  and  the  same.  Much  acumen  and  ingenuity  have  been  dis- 
played, even  by  a mind  profound  as  that  of  Mr.  Calhoun,  a most 
acute  man  and  a pure  man,  as  Mr.  Webster  eloquently  attested  in 
the  Senate  chamber,  after  the  decease  of  that  South  Carolina  states- 
man. I say  a good  deal  of  acumen  had  been  spent  on  the  question 
whether  a State,  or  any  number  of  States,  have  a right  under  the 
Constitution  to  secede  from  the  Union.  It  is  a quarrel  about 
phrases.  It  is  not  necessary  in  any  point  of  view,  political,  philo- 
logical or  moral,  to  use  the  word  “ secession  ” as  either  excusing  or 
justifying  the  act  of  the  Confederate  States.  Suppose  I grant,  as 
a distinct  proposition,  in  accordance  with  what  I admit  to  be  the 
opinion  of  the  great  majority  of  jurists,  and  orators,  and  statesmen 
at  the  North,  that  there  is  no  right  in  a State,  under  the  Constitu- 
tion, to  secede  from  the  Union — what  then?  I shall  not  stop  to 
give  you  the  argument  with  which  the  South  presents  a view  of  the 
question  entirely  different  from  that  of  the  North.  Of  what  con- 
sequence is  it,  practically,  whether  the  right  of  the  State  to  go  out 
be  found  in  any  part  of  the  compact  called  the  Constitution,  or  be 
derived  from  a source  extrinsic  of  it  ? You  (let  me  suppose)  are 
twelve  States,  and  I am  the  thirteenth.  There  is  the  original  con- 
federacy of  States,  pure  and  simple,  under  the  agreement  with  each 
other;  and  there,  according  to  the  views  of  Mr.  Webster  and  the 
prosecution  here,  we  became  constituted  in  a general  government, 
or,  as  Wheaton  says,  in  a “ composite  government,”  giving  great 


IN  DEFENSE  OF  THE  '‘SAVANNAH  PRIVATEERS.’ 


363 


power  to  the  general  center.  Now,  what  difference  does  it  make, 
if  you  twelve  States  conclude  to  leave  me,  whether  you  do  it  by 
virtue  of  anything  contained  in  the  Constitution,  or  inferable  from 
the  Constitution,  or  in  virtue  of  some  right  or  claim  of  right  that 
resides  out  of  the  Constitution  ? It  is  not  of  the  least  consequence. 
I do  not  care  for  the  word  “ secession.”  It  would  be,  at  the  worst, 
revolution.  In  that  same  great  speech  of  Mr.  Webster’s  against 
Calhoun,  in  which  I think  I am  justified  in  saying  he  exhausts  the 
subject  and  makes  the  most  formidable  argument  against  the  theory 
of  secession  that  was  ever  uttered  in  the  United  States,  all  the  con- 
clusion he  comes  to  is  this:  “‘Peaceable  secession!’  I cannot 
agree  to  such  a name.  I cannot  think  it  possible.  It  would  be 
revolution.”  Very  well.  Of  what  consequence  is  the  designation  ? 
Who  cares  for  the  baptism  or  the  sponsors  ? It  is  the  thing  you 
look  to.  And  if  they  have  either  the  right  or  the  power  to  secede 
or  revolutionize,  they  may  do  it,  and  there  is  no  tribunal  on  earth 
to  sit  in  judgment  upon  them;  though  we  have  the  right  and  the 
power,  on  the  other  hand,  to  battle  for  the  maintenance  of  the 
whole  Union. 

Our  friend,  Mr.  Justice  Grier,  says:  “No  band  of  conspirators 
can  overcome  the  government  merely  because  they  are  dissatisfied 
with  the  result  of  an  election.”  Now,  gentlemen,  with  the  defer- 
ence he  deserves,  I would  ask  the  learned  Justice  Grier,  or  any 
other  justice,  or  my  learned  friend,  Mr.  Evarts,  how  he  will  pro- 
ceed to  dispose  of  the  case  which  I am  about  to  put  ? Suppose 
that  all  but  one  of  our  States  meet  in  their  legislatures,  and,  by  the 
universal  acclaim,  and  with  the  entire  approval  of  all  the  people, 
resolve  that  they  will  remain  no  longer  in  association  with  the 
others  — what  will  you  do  with  them  ? That  solitary  State,  which  may 
be  Rhode  Island,  says:  “I  have  in  me  the  sovereignty;  I have  in 
me  all  the  attributes  that  belong  to  empire  or  national  existence; 
but  I think  I will  have  to  let  you  go.  Whether  you  call  it  seces- 
sion, or  rebellion,  or  revolution,  you  may  go,  because  you  have  the 
power  to  go,  if  there  be  no  better  reason.”  And  power  and  right 
become,  in  reference  to  this  subject,  the  same  thing  in  the  end. 
Do  they  not  ? Is  there  any  relation  on  earth  that  has  a higher 
sanction  than  marriage  ? So  long  as  two  parties,  who  have  con- 
tracted that  holy  obligation,  have,  in  truth,  no  fault  to  find  with 
each  other,  is  there  any  right  in  either  to  go  away  from  the  other  ? 
There  is  no  such  right,  either  by  the  law  of  God  or  of  man.  But 
there  is  a power  to  do  it;  is  there  not  ? And  if  the  wife  flee  from 


364 


SPEECH  OF  JAMES  T.  BRADY 


her  husband,  instead  of  towards  him,  or  if  a husband  go  from  his 
wife,  is  there  any  law  of  society  that  can  compel  them  to  unite  ? 
And  why  not  ? Because  mankind,  though  they  have  perpetrated 
many  follies,  have,  at  least,  recognized  that  this  was  a remedy  ut- 
terly impossible.  In  the  relation  of  partnership  between  two  indi- 
viduals, does  not  the  same  state  of  things  exist  ? and  do  not  the 
same  arguments  suggest  themselves  ? I ask  my  learned  brother 
what  he  can  do  in  reference  to  the  ten  States  that  have  claimed  to 
secede  from  the  Union,  and  have  organized  themselves  into  a gov- 
ernment ? I will  give  him  all  the  army  he  demands,  and  will  let 
him  retain  in  the  chair  of  State  this  honest,  pleasant  Mr.  Lincoln, 
who  is  not  the  greatest  man  in  the  world — nobody  will  pretend 
that — but  is  as  good  and  honest  a person  as  there  is  in  the  world. 
There  is  not  the  slightest  question  but  that,  in  all  his  movements, 
he  only  proposes  what  he  deems  consistent  with  the  welfare  and 
honor  of  the  country.  I will  give  my  learned  brother  the  army 
now  on  the  banks  of  the  Potomac,  doing  nothing,  and  millions  of 
money,  and  then  I desire  him  to  tell  us  how,  with  all  these  aids,  he 
can  coerce  those  ten  States  to  remain  in  the  confederacy.  What 
was  said  by  Mr.  Buchanan  on  the  subject,  in  his  message  of  De- 
cember last?  “I  do  not  propose,”  said  he,  “to  attempt  any  co- 
ercion of  the  States.  I believe  that  it  would  be  utterly  impossible. 
You  cannot  compel  a State  to  remain  in  the  Union.  They  may 
refuse  to  send  Senators  to  the  Senate  of  the  United  States.  They 
may  refuse  to  choose  electors,  and  the  government  stops.”  Well, 
I grant  you  that  this  is  not  the  view  of  other  men  quite  as  eminent 
as  Mr.  Buchanan.  I grant  you  that  the  great  Chief  Justice  Mar- 
shall— a man  to  whom  it  would  be  bad  taste  to  apply  any  other 
word  than  great,  because  that  includes  everything  which  character- 
ized him — I grant  you  that  brilliant  son  of  Virginia  met  an  argu- 
ment like  this  with  the  great  power  that  distinguished  all  his  judg- 
ments, when  a question  arose  in  the  Supreme  Court  of  the  United 
States,  affecting  the  State  of  Virginia  and  a citizen.  But  of  what 
importance  it  is  what  any  man  thinks  about  it  ? What  is  your 
theory  as  compared  with  your  practice  ? Now,  I will  give  my 
friend  all  the  power  he  wants,  and  ask  him  to  deal  with  these  ten 
States.  Do  you  believe  it  to  be  within  the  compass  of  a possibil- 
ity to  compel  them  to  remain  in  the  Union,  as  States,  if  they  do 
not  wish  it  ? 

Thus  I reach  the  conclusion,  on  even  the  weakest  view  of  the 
case  for  us,  that  the  power  to  secede,  and  the  power  to  organize  a 


IN  DEFENSE  OF  THE  SAVANNAH  PRIVATEERS.’ 


365 


government  existing,  there  is  no  power  on  earth  which,  on  any  rule 
of  law,  can  interfere  with  it,  except  that  of  war,  conducted  on  the 
principles  of  civilized  w^ar. 

Now,  then,  let  us  look  at  those  Confederate  States  a little  more 
closely.  What  says  Vattel,  in  the  passage  referred  to  by  my  learned 
friend,  Mr.  Larocque,  and  which  it  is  of  the  utmost  importance,  in 
this  connection,  to  keep  in  mind. 

Here  Mr.  Brady  cited  Vattel  (Book  3,  chap.  18,  §§  287,  292,  293),  to  show 
the  distinction  between  rebellion  and  civil  war/  and  claimed  that  the  Confederate 
States  were  clearly  within  the  rule,  and  entitled  to  the  benefits  of  the  estab- 
lished laws  of  war.  He  continued : 

Is  not  that  clearly  expressed  and  easy  to  understand  ? All  of 
us  comprehend  and  can  readily  apply  it  in  this  case.  That  resolves 
the  question,  if  indeed  this  be  the  law  of  the  land,  into  this:  Have 
the  Confederate  States,  on  any  show  of  reason,  or  without  it — for 
that  does  not  affect  the  inquiry — attained  sufficient  strength,  and 
become  sufficiently  formidable,  to  entitle  them  to  be  treated,  under 
that  law  of  nations,  as  in  a condition  of  civil  war,  even  if  they 
have  not  constituted  a separate,  sovereign  and  independent  nation  ? 
Really,  it  seems  to  me,  too  clear  for  doubt,  that  they  have.  We 
had,  in  the  revolution,  thirteen  colonies,  with  a limited  treasury, 
almost  destitute  of  means,  and  with  some  of  our  soldiers  so  behav- 
ing themselves,  in  the  early  part  of  the  struggle,  that  General  Wash- 
ington, on  one  memorable  occasion,  threw  down  his  hat  on  the 
ground  and  asked:  ‘‘Are  these  the  men  with  whom  I am  to  defend 
the  liberties  of  America  ? ” And  those  of  you,  gentlemen,  who  have 
read  this  correspondence,  know  how  constantly  he  was  complaining 
to  Congress  about  the  inefficiency  of  the  troops  and  their  liability 
to  desertion.  I remember  that  he  says  something  like  this:  “ There 
is  no  doubt  that  patriotism  may  accomplish  much.  It  has  already 
effected  a good  deal.  But  he  who  relies  on  it  as  the  means  of  car- 
rying him  through  a long  war  will  find  himself,  in  the  end,  griev- 
ously mistaken.  It  is  not  to  be  disguised  that  the  great  majority  of 
those  who  enter  the  service  do  so  with  a view  to  the  pay  which 
they  are  to  receive;  and,  unless  they  are  satisfied,  desertions  may 
be  expected.”  He  also  remarked,  at  another  period,  in  regard  to 
the  troops  of  a certain  portion  of  our  country,  which  I will  not 
name,  that  they  would  have  their  own  way;  that,  when  their  term 
of  enlistment  expired,  they  would  go  home;  and  that  they  would 


For  the  sections  cited  see  Appendix,  p.  723. 


366 


SPEECH  OF  JAMES  T.  ERADY 


sometimes  go  before  that  period  arrived.  That,  I am  mortified  to 
say,  has  been  imitated  in  the  present  struggle. 

Such  was  the  early  condition  of  the  colonies. 

Now,  the  Southern  Confederacy  have  ten  States;  they  had 
seven  when  this  commission  was  issued,  with  about  eight  millions 
of  people.  They  have  separate  State  governments,  which  have  ex- 
isted ever  since  the  Union  was  formed,  and  which  would  exist  if 
this  revolution  were  entirely  put  down.  They  have  excluded  us 
from  every  part  of  their  territory,  except  a little  foothold  in  the 
eastern  part  of  Virginia,  and  “ debatable  ground  ” in  western  Vir- 
ginia. We  have  not  yet  been  able  to  penetrate  farther  into  the 
Confederate  States.  We  cannot  send  even  food  to  the  hungry  or 
medicine  to  the  afflicted  there.  We  cannot  interchange  the  com- 
monest acts  of  humanity  with  those  of  our  friends  who  are  shut  up 
in  the  South.  I do  think,  with  the  conceded  fact  looking  directly 
into  the  face  of  the  American  people  that,  with  all  the  millions  at 
the  command  of  the  administration,  there  is  yet  found  sufficient 
force  and  power  in  the  Confederate  States  to  maintain  their  terri- 
tory, their  government,  their  legislature,  their  judiciary,  their  exec- 
utive, and  their  army  and  navy,  it  is  vain  and  idle  to  say  that  they 
are  not  now  in  a state  of  civil  war,  and  that  they  ought  to  be  ex- 
cluded from  the  humanities  incident  to  that  condition.  Such  an 
idea  should  not,  I think,  find  sanction  in  either  the  heart,  the  con- 
science or  intelligence  of  any  right-minded  man. 

13.  Evidences  of  the  existence  of  civil  war. 

Not  only  are  the  facts  already  stated  true,  but  the  Confederate 
States  have  been  recognized  as  a belligerent  power  by  France  and 
England,  as  we  have  proved  by  the  proclamations  placed  before 
you;  and  they  have  been  recognized  by  our  government  as  bellig- 
erents, at  least.  That  I submit,  as  a distinct  question  of  fact,  to 
the  jury,  unless  the  court  conceive  that  it  is  a pure  question  of  law, 
in  which  case  I am  perfectly  content  that  the  court  shall  dispose 
of  it. 

And  wfflere  do  I find  this  ? I find  it  in  the  admission  of  Mr. 
Lincoln,  in  his  inaugural  address,  that  there  is  to  be  no  attempt  at 
any  physical  coercion  of  these  States;  a concession  that  it  is  a 
thing  not  called  for,  not  consistent  with  the  views  of  the  admin- 
istration, or  with  the  general  course  of  policy  of  the  American 
people.  According  to  his  view,  there  was  to  be  nD  war.  I find  it 
in  the  correspondence  of  General  Anderson  with  Governor  Pickens, 


IN’  DEFENSE  OF  THE  “ SAVANNAH  PRIVATEERS."  367 

which  has  been  read  in  the  course  of  the  trial ' — which,  of  course, 
has  been  communicated  to  the  government,  will  be  found  among 
its  archives,  and  of  which  no  disapprobation  has  been  expressed. 
And  here  I borrow  a doctrine  from  the  district  attorney,  who  said, 
when  I declared  that  the  legislative  branch  of  the  government  had 
not  given  their  declaration  as  to  what  was  the  true  condition  of  the 
South,  that  their  silence  indicated  what  it  was;  and  so,  the  silence 
of  the  government,  in  not  protesting  against  this  correspondence, 
is  good  enough  for  my  purpose. 

The  proclamation  of  the  President,  calling  for  75,000  troops, 
and  then  calling  for  a greater  number,  would,  in  any  court  in 
Christendom,  outside  of  the  United  States,  be  regarded,  under  in- 
ternational law,  as  conclusive  evidence  that  those  troops  were  to  be 
used  against  a belligerent  power.  Who  ever  heard  of  eight  mil- 
lions of  people,  or  of  one  million  of  people,  being  all  traitors,  and 
being  all  liable  to  prosecution  for  treason  at  once.  I find  this  rec- 
ognition in  the  exchange  of  prisoners,  which  we  know,  as  a matter 
of  history,  has  occurred.  I find  it  in  the  capitulation  of  Hatteras, 
at  which,  and  by  which.  General  Butler,  of  his  own  accord,  when 
he  refused  the  terms  of  surrender  proposed  by  Commodore  Barron, 
declared  that  the  garrison  should  be  taken  as  prisoners  of  war;  and 
that  has  been  communicated  to  the  government,  and  no  dissatisfac- 
tion expressed  about  it. 

And,  gentlemen,  I rest  it,  also,  as  to  the  recognition  by  our 
government,  on  the  fact  to  which  Mr.  Sullivan  so  appropriately  al- 
luded: the  exchange  of  flags  of  truce  between  the  two  contending 
forces,  as  proved  by  one  of  the  officers  of  the  navy.  A flag  of 
truce  sent  to  rebels — to  men  engaged  in  lawless  insurrection,  in 
treasonable  hostility  to  the  government,  with  a view  to  its  over- 
throw! Why,  gentlemen,  it  is  the  grandest,  as  it  is  the  most  char- 
acteristic, device  by  which  humanity  protects  men  against  atrocities 
which  they  might  otherwise  perpetrate  upon  each  other:  that  little 
white  flag,  showing  itself  like  a speck  of  divine  snow  on  the  red 
and  bloody  field  of  battle;  coming  covered  all  over  with  divinity; 
coming  in  the  hand  of  peace,  who  rejoices  to  see  another  place 
where  her  foot  may  rest;  welcome  as  the  dove  which  returned  to 
the  ark;  coming,  I say,  in  the  hand  of  peace,  who  is  the  great  con- 
queror, and  before  whom  the  power  of  armies  and  the  bad  ambi- 
tions and  great  struggles  of  men  must  ultimately  be  extinguished. 


For  an  abstract  of  the  documentary  evidence,  sec  Appendix,  p.  725. 


368 


SPEECH  OF  JAMES  T.  BRADY 


This,  of  itself,  will  be  regarded  by  mankind,  when  they  reflect 
wisely,  as  sufficient  to  show  that  our  government  must  not  be 
brutal;  and  we  seek  to  rescue  the  administration  from  any  imputa- 
tion that  it  wants  to  deny  to  the  South  the  common  humanities 
which  belong  to  warfare,  by  your  refusing  to  let  men  be  executed 
as  pirates,  or  to  make  a distinction  between  him  who  wars  on  the 
deep  and  him  who  wars  upon  the  land. 

It  is  very  strange  if  the  poor  fellows  who  had  no  means  of  earn- 
ing a meal  of  victuals  in  the  city  of  Charleston,  like  some  of  those 
who  composed  the  crew  of  this  vessel,  shut  up  as  if  in  a trap, 
should  be  hanged  as  pirates  for  being  on  board  a privateer,  under 
a commission  from  the  Confederate  States,  and  that  those  who 
have  slain  your  brothers  in  battle  should  be  taken  as  prisoners  of 
war,  carefully  provided  for,  and  treated  with  the  benevolence  which 
we  extend  to  all  prisoners  who  fall  into  our  hands  ; the  same 
humanities  that,  as  you  perceive,  are  provided  for  in  the  instruc- 
tions from  Jefferson  Davis,  found  on  board  the  privateer,  directing 
that  the  prisoners  taken  should  be  dealt  with  gently  and  leniently, 
and  to  give  them  the  same  rations  as  were  supplied  to  persons  in 
the  confederate  service. 

Mr.  Brady  here  referred  to  the  proposition  advanced  by  Vattel,  that  some 
reason  must  exist  for  a revolt  or  a civil  war,  in  order  to  distinguish  it  from  an  in- 
surrection merely.  He  claimed  that  if  any  reason  existed,  there  was  no  common 
superior  to  judge  who  was  right  or  wrong.  He  then  stated  the  reasons  assigned 
by  the  South  in  justification  of  its  course.  They  claimed,  he  said,  that  the  gov- 
ernment had  no  right  to  interfere  with  slavery,  or  limit  its  extension,  or  to  nullify 
the  fugitive  slave  laws  in  New  England.  He  referred  to  Mr.  Webster’s  speech 
of  the  7th  of  March,  1850,  to  show  that  no  section  of  the  country  had  a right  to 
refuse  obedience  to  the  fugitive  slave  law,  and  that  such  refusal  was  a wrong 
towards  the  South.  He  referred  to  the  “ Creole  Case,”  to  show  that  the  courts 
did  not  afford  them  ample  remedy,  and  that,  therefore,  their  only  course  was 
revolution.  He  then  continued  : 


14.  During  civil  war,  the  combatants  are  entitled  to  all 

THE  RIGHTS  OF  WAR. BLOCKADE  DEFINED. 

Let  me  now  cite  to  you  Wheaton’s  International  law,  page  30, 
in  which  he  says,  that  “ sovereignty  is  acquired  by  a State,  either 
at  the  origin  of  the  civil  society  of  which  it  is  composed,  or  when 
it  separates  itself  from  the  community  of  which  it  previously  formed 
a part,  and  on  which  it  was  dependent.”  Then  he  says,  that  “civil 
war  between  the  members  of  the  same  society  is,  by  the  general 
usages  of  nations,  such  a war  as  entitles  both  the  contending  parties 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


369 


to  all  the  rights  of  war  as  against  each  other,  and  as  against  neutral 
nations.” 

This,  if  your  Honors  please,  seems  to  me  an  answer  to  the  doc- 
trine put  forward  in  this  case,  that  the  judges  are  to  treat  this 
question  in  reference  to  the  seceding  States  as  it  has  been  viewed 
by  the  executive  and  legislative  branches  of  the  government.  If  it 
be  true  that  when  a state  of  civil  war  exists,  as  stated  by  Wheaton, 
both  the  contending  parties  have  all  the  rights  of  war  as  against 
each  other,  as  well  as  against  neutral  nations,  then  it  follows  very 
clearly  that  the  seceding  States,  as  well  as  our  own,  have  all  the 
rights  of  war;  and  there  is  no  such  rule  as  that  they  must  have 
those  rights  determined  only  by  the  executive  or  legislative  branches 
of  the  government,  or  by  both. 

And  here,  gentlemen,  let  us  refer  to  the  matter  of  blockade, 
which  I take  to  be  the  highest  evidence  of  a distinct  recognition, 
by  the  general  government,  of  a state  of  war  as  between  the  United 
and  the  Confederate  States.  I see  no  escape  from  that  conclusion. 
It  is  true  that  a learned  judge  in  New  England,  an  eminent  and 
pure  man,  has  determined,  as  we  see  from  the  newspapers,  that,  in 
his  judgment  it  is  not  a blockade  which  exists,  but  merely  the  ex- 
ercise by  the  general  government  of  its  authority  over  commerce 
and  territory  in  a state  of  insurrection  ; that  it  is  a mere  police  or 
municipal  regulation.  Well,  gentlemen,  that  is  not  the  view  taken 
by  the  judges  elsewhere.  Certainly  it  is  not  adopted  in  this  dis- 
trict, where  prize  cases  have  arisen,  instituted  by  the  government, 
which  calls  this  a blockade;  and  I undertake  to  say  that,  in  the 
history  of  the  human  race,  that  word,  blockade,  never  was  applied 
except  in  a state  of  war;  and  the  exercise  of  that  power  never  can 
occur  except  in  a state  of  war,  because,  as  the  writers  inform  us, 
blockade  is  the  right  of  a belligerent  affecting  a neutral,  and  only 
allowable  in  a state  of  war.  Why  is  it  that  France  and  England, 
and  all  the  other  countries  of  the  world,  do  not  attempt  to  send 
their  vessels  to  any  of  the  ports  in  guard  of  which  we  place  armed 
vessels  ? 

A word  more  about  piracy:  A pirate  is  an  offender  against  the 
law  of  nations.  He  is  called  in  the  Latin,  and  by  the  jurists,  the 
enemy  of  the  human  race.  Any  nation  can  lay  hold  of  him  on 
the  high  seas,  take  him  to  its  country,  and  punish  him.  Now,  if  a 
ship  of  war — British,  French,  Russian,  or  of  any  other  nation — 
should  meet  with  a piratical  craft,  she  would  capture  and  condemn 
it  in  the  courts  of  her  country,  and  the  crew  would  suffer  the  pun- 
24 


370 


SPEECH  OF  JAMES.T.  BRADY 


ishment  of  pirates.  No  one  will  dispute  that  proposition.  But  if 
such  a ship  of  war  had  met  with  the  privateer  Savannah,  even  in 
the  very  act  of  capturing  the  Joseph,  would  she  have  captured  the 
Savannah  or  attempted  to  arrest  her  crew  as  pirates  ? If  not,  does 
it  not  follow,  as  a necessary  consequence,  that  the  Savannah  was 
not  engaged  in  piratical  business  ? and  does  it  not  involve  a palpa- 
ble absurdity  to  say,  that  a vessel  on  the  high  seas,  cruising  under 
a privateer’s  commission,  can  be  treated  as  a pirate  by  the  power 
with  which  it  is  at  war,  and  yet  be  declared  not  a pirate  by  all  the 
other  powers  of  the  earth  ? This  must  be  so,  if  there  is  anything 
in  the  idea  that  piracy  is  an  offense  against  the  law  of  nations. 

There  is  not  a case  in  our  books  where  any  man,  under  a com- 
mission emanating  from  any  authority  or  person,  was  ever  treated 
as  a pirate,  and  so  condemned,  unless  the  actual  intent  to  steal  was 
proved.  In  the  case  of  Aurey  such  was  the  fact,  as  in  many  other 
cases  which  have  been  cited.  And  so  it  seems,  that,  if  the  Confed- 
erate States  were  either  an  actual  government,  established  in  virtue 
of  the  principles  of  right  to  which  I have  referred;  or  if  a govern- 
ment de  facto y as  distinguished  from  one  having  that  right;  or  if 
these  men  believed  that  the  commission  emanated  from  either  kind 
of  government — was  lawfully  issued — we  claim  that  it  is  impossible 
in  law,  and  would  be  wrong  in  morals,  and  unjust  in  all  its  conse- 
quences, to  hold  them  as  pirates,  or  to  treat  them  otherwise  than 
as  prisoners  of  war.  And,  gentlemen,  I am  sorry  to  say,  or  rather 
I am  glad  to  say,  that  if  they  should  be  acquitted  of  the  crime  of 
piracy,  they  would  yet  remain  as  prisoners  of  war.  The  worst 
thing  to  do  with  them  is  to  hang  them.  By  preserving  their  lives 
we  have  mst  their  number  to  exchange  for  prisoners  taken  by  the 
enemy. 

You,  gentlemen,  will  do  your  duty  under  the  law,  whatever  be 
the  consequences.  If  you  have  no  doubt  that  these  men  have  com- 
mitted piracy,  they  should  be  convicted  of  piracy.  No  threat  of 
retaliation  from  any  quarter  should  or  will  influence  right-minded 
men  in  the  disposition  to  be  made  of  cases  where  they  have  to  give 
a verdict  according  to  their  conscience,  the  evidence,  and  the  law 
of  the  land. 

But  the  fact  of  retaliation,  as  a danger  that  may  ensue  from 
treating  as  pirates  men  engaged  in  war,  is  referred  to  by  Vattel  in 
his  treatise  on  the  laws  of  nations.  It  is  one  of  the  considerations 
which  enjoin  on  courts  and  governments  the  duty  of  seeing  that. 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.”  371 


when  people  are  prosecuting  civil  war,  they  shall  enjoy  the  human- 
ities of  war. 

Mr,  Brady  here  discussed  the  case  under  the  ninth  section  of  the  act  of  1790. 
He  claimed  it  had  no  application  to  the  four  Americans,  since  they  owed  allegi- 
ance to  another  government.  That,  as  construed  by  the  prosecution,  the  act  was 
unconstitutional,  because  it  could  only  apply  to  acts  done  under  authority  of  a 
foreign  power  or  person,  and  if  Jefferson  Davis  was  or  represented  that  power,  the 
defendants  were  his  subjects,  and  not  citizens;  if  he  did  not  represent  a foreign 
power,  the  act  did  not  apply  at  all.  He  then  referred  to  the  subject  of  variance 
between  the  proof  and  the  indictment,  and  cited  Wharton’s  Crim,  Law,  pp.  78, 
91,  93,  94  and  96,  and  U.  S.  v.  Hardiman,  13  Peters,  176.  He  claimed  also  that 
the  status  of  the  Confederacy  was  a judicial  question,  and  must  be  considered  by 
the  court  and  jury.  After  referring  to  the  trial  of  McLeod,  he  concluded  as 
follows : 

Gentlemen,  I will  detain  you  but  a few  moments  longer.  I have 
endeavored  to  show,  in  the  first  place,  that  these  men  cannot  be 
convicted  of  piracy,  because  they  had  not  the  intent  to  steal,  essen- 
tial to  the  commission  of  that  offense,  and  that  you  are  the  judges 
whether  that  intent  did  or  did  not  exist.  If  it  did  not,  then  the 
accused  men  are  entitled  to  acquittal  on  that  ground.  If  the  act 
of  1790  be  constitutional,  and  if  it  can  be  construed  to  extend  to 
a case  like  this,  then  eight  of  the  prisoners  are  to  be  discharged, 
being  foreigners,  not  naturalized;  and  the  other  four  also,  having 
acted  under  a commission  issued  in  good  faith  by  a government 
which  claimed  to  have  existence,  acted  upon  in  good  faith  by  them- 
selves, and  with  the  belief  that  they  were  not  committing  any  law- 
less act  of  aggression.  In  this  connection  I hold  it  to  be  imma- 
terial whether  the  confederate  government  was  one  of  right,  estab- 
lished on  sufficient  authority  according  to  the  law  of  nations,  and 
to  be  recognized  as  such,  or  whether  it  was  merely  a government  in 
fact.  We  claim,  beyond  all  that,  and  apart  from  the  question  of 
government  in  law  or  government  in  fact,  that  there  exists  a state 
of  civil  war,  which  entitles  these  defendants  to  be  treated  in  every 
other  manner  than  as  pirates;  which  may  have  rendered  them 
amenable  to  the  danger  of  being  regarded  as  prisoners  of  war,  but 
which  has  made  it  impossible  for  them  to  be  ever  dealt  with  as 
felons. 

15.  The  duties  of  an  advocate  require  the  highest 

MORAL  COURAGE. 

I am  sorry  that  it  has  become  necessary  in  this  discussion  to 
open  subjects  for  debate,  any  inquiry  about  which,  at  this  partic- 


372 


SPEECH  OF  JAMES  T.  BRADY 


ular  juncture  in  our  history,  is  not  likely  to  be  attended  with  any 
great  advantage.  But,  like  my  brethren  for  the  defense,  I have 
endeavored  to  state  freely,  fearlessly,  frankly  and  correctly,  the 
positions  on  which  the  defendants  have  a right  to  rely  before  the 
court  and  before  you.  It  would  have  been  much  more  acceptable 
to  my  feelings,  as  a citizen,  if  we  had  been  spared  the  performance 
of  any  such  duty.  But,  gentlemen,  it  is  not  our  fault.  The  advo- 
cate is  of  very  little  use  in  the  days  of  prosperity  and  peace,  in  the 
periods  of  repose,  in  protecting  your  property,  or  aiding  you  to  re- 
cover your  rights  of  a civil  nature.  It  is  only  when  public  opinion, 
or  the  strong  power  of  government,  the  formidable  array  of  influ- 
ence, the  force  of  a nation,  or  the  fury  of  a multitude,  is  directed 
against  you,  that  the  advocate  is  of  any  use. 

Many  years  ago,  while  we  were  yet  colonies  of  Great  Britain, 
there  occurred  on  this  island  what  is  known  as  the  famous  negro 
insurrection — the  result  of  an  idle  story  told  by  a worthless  person, 
and  yet  leading  to  such  an  inflammation  of  the  public  mind  that 
all  the  lawyers  who  then  practiced  at  the  bar  of  New  York  (and  it 
is  the  greatest  stigma  on  our  profession  of  which  the  world  can 
furnish  an  example)  refused  to  defend  the  accused  parties.  One  of 
them  was  a poor  priest,  of,  I believe,  foreign  origin.  The  conse- 
quence was,  that  numerous  convictions  took  place,  and  a great 
many  executions.  And  yet  all  mankind  is  perfectly  satisfied  that 
there  never  was  a more  unfounded  rumor,  never  a more  idle  tale, 
and  that  judicial  murders  were  never  perpetrated  on  the  face  of 
the  earth  more  intolerable,  more  inexcusable,  more  without  pallia- 
tion. How  different  was  it  in  Boston,  at  the  time  of  what  was 
called  the  massacre  of  Massachusetts  subjects  by  British  forces! 
The  soldiers  on  being  indicted,  sought  for  counsel,  and  they  found 
two  men  of  great  eminence  in  the  profession  to  act  for  them.  One 
of  them  was  Mr.  Adams,  and  the  other  Mr.  Quincy.  The  father 
of  Mr.  Quincy  addressed  a letter,  imploring  him,  on  his  allegiance 
as  a son,  and  from  affection  and  duty  toward  him,  not  to  undertake 
the  defense  of  these  men.  The  son  wrote  back  a response,  recog- 
nizing, as  he  truly  felt,  all  the  filial  affection  which  he  owed  to  that 
honored  parent,  but,  at  the  same  time,  taking  the  high  and  appro- 
priate ground  that  he  must  discharge  his  duty  as  an  advocate,  ac- 
cording to  the  rules  of  his  profession  and  the  obligation  of  his  offi- 
cial oath,  whatever  might  be  the  result  of  his  course. 

The  struggles,  in  the  history  of  the  world,  to  have  in  criminal 
trials  an  honest  judiciary,  a fearless  jury,  and  a faithful  advocate, 


IN  DEFENSE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


373 


disclose  a great  deal  of  wrong  and  suffering  inflicted  on  advocates 
silenced  by  force,  trembling  at  the  bar  where  they  ought  to  be  ut- 
terly immovable  in  the  discharge  of  their  duty — on  juries  fined  and 
imprisoned,  and  kept  lying  in  dungeons  for  years,  because  they 
dared,  in  State  prosecutions,  to  find  verdicts  against  the  direction 
of  the  court.  The  provisions  of  our  own  Constitution,  which  se- 
cure to  men  trial  by  jury  and  all  the  rights  incident  to  that  sacred 
and  invaluable  privilege,  are  the  history  of  wrong  against  which 
those  provisions  are  intended  to  guard  in  the  future.  This  trial, 
gentlemen,  furnishes  a brilliant  illustration  of  the  beneficial  results 
of  all  this  care.  Nothing  could  be  fairer  than  the  trial  which  these 
prisoners  have  had;  nothing  more  admirable  than  the  attention 
which  you  have  given  to  every  proceeding  in  this  case.  I know  all 
the  gentlemen  on  that  jury  well  enough  to  be  perfectly  certain  that 
whatever  verdict  they  render  will  be  given  without  fear  or  favor,  on 
the  law  of  the  land,  as  they  shall  be  informed  it  does  exist,  on  a 
calm  and  patient  review  of  the  testimony,  with  a due  sympathy  for 
the  accused,  and  yet  with  a proper  respect  for  the  government,  so 
that  the  law  shall  be  satisfied  and  individual  right  protected. 

But,  gentlemen,  I do  believe  most  sincerely  that,  unless  we  have 
deceived  ourselves  in  regard  to  the  law  of  the  land,  I have  a right  to 
invoke  your  protection  for  these  men.  The  bodily  presence,  if  it 
could  be  secured,  of  those  who  have  been  here  in  spirit  by  their 
language,  attending  on  this  debate  and  hovering  about  these  men 
to  furnish  them  protection — Lee,  and  Hamilton,  and  Adams,  and 
Washington,  and  Jefferson,  all  whose  spirits  enter  into  the  prin- 
ciples for  which  we  contend — would  plead  in  their  behalf.  I do 
wish  that  it  was  within  the  power  of  men,  invoking  the  great  Ruler 
of  the  Universe,  to  bid  these  doors  open  and  to  let  the  revolution- 
ary sages  to  whom  I have  referred,  and  a Sumter,  a Moultrie,  a 
Marion,  a Greene,  a Putnam,  and  the  other  distinguished  men  who 
fought  for  our  privileges  and  rights  in  the  days  of  old,  march  in 
here  and  look  at  this  trial.  There  is  not  a man  of  them  who  would 
not  say  to  you  that  you  should  remember,  in  regard  to  each  of 
these  prisoners,  as  if  you  were  his  father,  the  history  of  Abraham 
when  he  went  to  sacrifice  his  son  Isaac  on  the  mount — the  spirit  of 
American  liberty,  the  principles  of  American  jurisprudence,  and  the 
dictates  of  humanity,  constituting  themselves  another  Angel  of  the 
Lord,  and  saying  to  you,  when  the  immolation  was  threatened, 
“ Lay  not  your  hand  upon  him.’* 


SPEECH  OF  WILLIAM  M.  EVARTS, 


For  the  Prosecution  in  the  Case  of  the  “ Savannah  Pri- 
vateers,” Indicted  for  Piracy. 

AT  A CIRCUIT  COURT  OF  THE  UNITED  STATES,  HELD  AT 
THE  CITY  OF  NEW  YORK,  OCTOBER  TERM,  i86i. 


Analysis  of  Mr. 

1.  Limitation  of  the  responsibility  of  the 

jury. 

2.  Principles  governing  the  punishment  of 

crime. 

3.  Wisdom  and  justice  of  the  pardoning 

power. 

4.  Elements  of  the  crime  of  piracy. 

5.  Opinions  or  views  as  to  property  rights 

in  general,  no  defense. 

6.  An  exhibition  of  force  sufficient  evi- 

dence. 

7.  Nature  of  the  defense  and  province  of 

the  jury. 

8.  Privateering  under  the  law  of  nations, 

and  laws  of  war. 

9.  Rights  of  neutral  powers,  with  respect 

to  privateers,  in  a state  of  civil  war. 

10.  The  fact  that  the  South  had  been  recog- 

nized as  belligerents,  immaterial. 

11.  The  condition  of  belligerents  no  protec- 

tion to  citizens. 

12.  Statement  of  the  views  advanced  by  the 

defense. 

13.  The  evidence,  as  to  civil  war,  and  the 

right  of  revolution. 

14.  The  fact  of  actual  existence  of  war  im- 

material. 


Evarts’  Speech. 

15.  War  defined.— The  plea  of  war  a con 

fession  of  treason. 

16.  Treason  no  defense  against  piracy. 

17.  The  authority  of  Vattel  in  harmony 

with  the  prosecution. 

18.  Duty  of  government  to  protect  its  com- 

merce and  its  citizens. 

19.  The  novel  political  questions  presented 

by  the  defense. 

20.  The  right  of  revolution. 

21.  The  problem  of  self-government. 

22.  Practical  object  and  spirit  of  govern- 

ment. 

23.  Political  results  of  war. 

24.  Wisdom  and  advantages  of  our  political 

system. 

25.  The  right  of  secession  inconsistent  with 

our  institutions. 

26.  Vie  ws  of  William  Pinckney  on  the  per- 

fection of  our  government. 

27.  Views  of  Alexander  H.  Stephens  on  the 

sanctity  of  the  Union. 

28.  Marvelous  success  of  our  government. 

29.  Distinction  between  power  and  right. 

30.  Good  faith  no  defense.— Case  of  John 

Brown. 


Mr.  Evarts  closed  the  case  for  the  prosecution.  He  discussed  the  various 
questions  raised  by  the  prisoners  in  an  able  and  masterly  manner,  weaving  an 
instructive  and  interesting  address,  full  of  information  in  the  departments  of 
legal  learning,  which  pertain  to  the  law  of  nature  and  nations,  and  embracing  a 
consideration  of  the  immunities  and  privileges  recognized  by  the  rules  of  civil- 
ized warfare.  When,  and  under  what  circumstances,  in  law  and  in  morals,  are 
a people  justified  in  invoking  the  scourge  of  war;  and  for  what  causes  have  they 
a right  to  shatter  the  foundations  of  government  and  society  ? T.  he  prisoners 
claimed,  that  if  cause  had  been  shown,  the  court  must  recognize  the  existence  of 

. [374] 


SPEECH  OF  WILLIAM  M.  EVARTS. 


a state  of  civil  war,  and  could  not  treat  the  belligerents  as  insurrectionists  mere- 
ly, but  as  entitled  to  all  the  rights  of  war.  That,  in  a state  of  civil  war,  the 
right  to  commission  privateers  was  a legal  right,  and  the  letter  of  marque  offered 
in  evidence  was,  therefore,  a legal  defense.  They  claimed  that  the  federal  gov- 
ernment had  accorded  these  rights  to  the  soldiers  in  the  field,  and  that,  there- 
fore, the  court  should  do  likewise  with  regard  to  those  who  carried  on  warfare 
on  the  ocean;  and,  by  way  of  justification,  it  was  sought  to  establish  a parallel 
between  the  war  of  the  revolution  and  the  war  of  the  rebellion. 

In  answer  to  these  arguments  Mr.  Evarts  claimed,  that  the  wrongs  com- 
plained of  by  the  South,  as  constituting  just  cause  for  rebellion  against  the  gov- 
ernment, did  not  proceed  from  the  government.  That  there  was  no  parallel  be- 
tween the  present  controversy  and  the  war  with  Great  Britain  in  1776;  because 
the  causes  for  that  revolution  embraced  an  exercise  of  tyranny  towards  the 
colonies  by  the  mother  country,  and  an  absolute  denial  of  representation  in  the 
government.  Here  there  was  no  pretense  either  of  oppression  by  the  general 
government,  or  of  any  limitation  of  the  right  of  representation.  This  branch  of 
the  defense  was  discussed  under  two  heads,  the  right  of  secession,  and  the  right 
of  revolution.  Under  the  first,  Mr.  Evarts  gave  a historical  sketch  of  the  causes 
and  results  of  the  revolution,  to  show  that  the  war  was  carried  to  a successful 
termination  by  the  people,  as  one  people,  and  not  as  independent  sovereignties. 
That  although  the  diplomatic  history  of  the  country  showed  that  in  some  of  the 
early  treaties  each  State  was  separately  named,  yet  they  were  invariably  grouped 
as  one  nation,  and  the  treaties  always  referred  to  the  commerce  of  the  two 
countries.  Under  the  second  head,  he  argued,  that  where  a government  was  de- 
fective or  vicious  in  its  operations,  there  an  inherent  right  existed  to  alter  or 
abolish  it.  But  where  a government  was  universally  regarded  as  the  most  per- 
fect of  all  human  governments,  it  was  unjust  and  wicked  to  rebel  against  it.  As 
proof  of  the  perfection  of  our  system  he  quoted  the  encomiums  that  had  been 
passed  upon  it  by  some  of  the  wisest  statesmen  at  the  South,  at  the  hour  of  its 
birth,  and  at  the  hour  of  its  attempted  dissolution.  Owing  to  the  great  length 
of  this  speech,  it  became  necessary  to  give  that  portion  of  it  relating  to  right  of 
revolution  only.  The  technical  portions  relative  to  the  bearing  of  the  act  of 
1790,  and  some  minor  topics,  have  been  necessarily  omitted,  from  both  the  argu- 
ments of  Mr.  Brady  and  Mr.  Evarts,  though  referred  to  in  the  notes,  together 
with  the  authorities  cited. 

The  question  of  jurisdiction  was  argued  at  various  stages  of  the  case.  It 
arose  from  the  following  language  of  the  statute:  “ The  trial  of  all  offenses 
which  shall  be  committed  upon  the  high  seas,  or  elsewhere,  out  of  the  limits  of 
any  State  or  district,  shall  be  in  the  district  where  the  offender  is  apprehended, 
or  into  which  he  may  be  first  brought.”  It  was  claimed  that  the  prisoners  were 
first  brought  into  Hampton  Roads,  in  the  eastern  district  of  Virginia,  and  that 
this  court  had  no  jurisdiction.  The  court  held  that  the  clause  was  in  the  alter- 
native, and  jurisdiction  might  be  exercised  either  in  the  district  where  the  pris- 
oners were  first  brought,  or  in  the  district  where  they  were  apprehended  under 
lawful  authority  for  trial.  Mr.  Evarts  spoke  as  follows: 


May  it  please  your  Honors,  and  Gentlemen  of  the 
Jury: — A trial  in  a court  of  justice  is  a trial  of  many  things  be- 


376 


SPEECH  OF  WILLIAM  M.  EYARTS 


sides  the  prisoners  at  the  bar.  It  is  a trial  of  the  strength  of  the 
laws,  of  the  power  of  the  government,  of  the  duty  of  the  citizen, 
of  the  fidelity  to  conscience  and  the  intelligence  of  the  jury.  It  is 
a trial  of  those  great  principles  of  faith,  of  duty,  of  law,  of  civil 
society,  that  distinguish  the  condition  of  civilization  from  that  of 
barbarism.  I know  no  better  instance  of  the  distinction  between 
a civilized,  instructed,  Christian  people,  and  a rude  and  barbarous 
nation,  than  that  which  is  shown  in  the  assertions  of  right  where 
might  and  violence  and  the  rage  of  passion  in  physical  contest 
determine  everything,  and  this  last  sober,  discreet,  patient,  intel- 
ligent, authorized,  faithful,  scrupulous,  conscientious  investigation, 
under  the  lights  of  all  that  intelligence  with  which  God  has  favored 
any  of  us;  under  that  instruction  which  belongs  to  the  learned  and 
accredited  expounders  of  the  law  of  an  established  free  govern- 
ment; under  the  aid  of,  and  yet  not  misled  by,  the  genius  or  elo- 
quence of  advocates  on  either  side. 

But,  after  all,  the  controlling  dominion  of  duty  to  the  men  be- 
fore you  in  the  persons  of  the  prisoners,  to  the  whole  community 
around  you,  and  to  the  great  nation  for  which  you  now  discharge 
here  a vital  function  for  'its  permanence  and  its  safety;  your  duty 
to  the  laws  and  the  government  of  your  country  (which,  giving  its 
protection,  requires  your  allegiance,  and  finds  its  last  and  final 
resting-place,  both  here  and  in  England,  in  the  verdicts  of  juries); 
your  duty  to  yourselves  requires  you  to  recognize  yourselves  not 
only  as  members  of  civil  society,  but  as  children  of  the  “ Father  of 
an  Infinite  Majesty,”  and  amenable  to  His  last  judgment  for  your 
acts.  Can  any  of  us,  then,  fail  to  feel,  even  more  fully  than 
we  can  express,  that  sympathies,  affections,  passions,  sentiments, 
prejudices,  hopes,  fears,  feelings  and  responsibilities  of  others  than 
ourselves  are  banished  at  once  and  forever,  as  we  enter  the  threshold 
of  such  an  inquiry  as  this,  and  never  return  to  us  until  we  have 
passed  from  this  sacred  precinct,  and,  with  our  hands  on  our 
breasts  and  our  eyes  on  the  ground,  can  humbly  hope  that  we  have 
done  our  duty,  and  our  whole  duty. 

Something  was  said  to  you,  gentlemen  of  the  jury,  of  the  un- 
wonted circumstances  of  the  prosecution,  by  the  learned  counsel 
who,  many  days  ago,  and  with  an  impressiveness  that  has  not  yet 
passed  away  from  your  memory,  opened  on  behalf  of  the  prisoners 
the  course  of  this  defense. 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  37T 


I.  Limitation  of  the  responsibility  of  the  jury. 

He  has  said  to  you,  that  the  number  of  those  whose  fate,  for  life 
or  for  death,  hangs  on  your  verdict,  is  equal  to  your  own;  hinting 
a ready  suggestion  that  that  divided  responsibility  by  which  twelve 
men  may  sometimes  shelter  themselves,  in  weighing  in  the  balance 
the  life  of  a single  man,  is  not  yours.  Gentlemen,  let  us  under- 
stand how  much  of  force  and  effect  there  is  in  the  suggestion,  and 
how  truly  and  to  what  extent  the  responsibility  of  a jury  may  be 
said  to  include  this  issue  of  life  and  death.  In  the  first  place,  as 
jurymen,  you  have  no  share  or  responsibility  in  the  wisdom  or  the 
justice  of  those  laws  which  you  are  called  upon  to  administer.  If 
there  be  defects  in  them;  if  they  have  something  of  that  force  and 
severity  which  is  necessary  for  the  maintenance  of  government  and 
the  protection  of  peace  and  property,  and  of  life  on  the  high  seas: 
you  have  had  no  share  in  their  enactment,  and  have  no  charge  at 
your  hands  of  their  enforcement.  In  the  next  place,  you  have  no 
responsibility  of  any  kind  in  regard  to  the  discretion  of  the  repre- 
sentatives of  this  government  in  the  course  which  they  choose  to 
take,  as  to  whether  they  will  prosecute  or  leave  unprosecuted.  You 
do  not,  within  the  limits  of  the  inquiry  presented  to  you,  dispose  of 
the  question,  why  others  have  not  been  presented  to  you;  nor  may 
that  which  has  been  done  in  a case  not  before  you,  serve  as  a guide 
for  the  subject  submitted  to  your  consideration.  So,  too,  you  have 
no  responsibility  of  any  kind  concerning  the  course  or  views  of  the 
law  which  this  tribunal  may  give  for  your  guidance.  The  court 
does  not  make  the  law,  but  Congress  does.  The  court  declares  the 
law  as  enacted  by  the  government,  and  the  jury  find  the  facts,  giv- 
ing every  scrutiny,  every  patient  investigation,  every  favor  for  life, 
and  every  reasonable  doubt  as  to  the  facts,  to  the  prisoners.  Hav- 
ing disposed  of  that  duty,  as  sober,  intelligent  and  faithful  men, 
graduating  your  attention  only  by  the  gravity  of  the  inquiry,  you 
have  no  further  responsibility.  But  I need  not  say  to  you,  gentle- 
men, that  if  any  civilized  government  is  to  have  control  of  the  sub- 
ject of  piracy,  if  pirates  are  to  be  brought  within  the  jurisdiction 
of  the  criminal  law,  the  very  nature  of  the  crime  involves  the  fact 
that  its  successful  prosecution  necessarily  requires  that  consider- 
able numbers  shall  be  engaged  in  it.  I am  quite  certain  that,  if  my 
learned  friends  had  found  in  the  circumstances  of  this  case  nothing 
which  removed  it  out  of  the  category  of  the  heinous  crime  of  pri- 
vate plunder  at  sea,  exposing  property  and  life,  and  breaking  up 


378 


SPEECH  OF  WILLIAM  M.  EVARTS 


commerce,  they  would  have  found  nothing  in  the  fact  that  a ship’s 
crew  was  brought  in  for  trial,  and  that  the  number  of  that  crew 
amounted  to  twelve  men,  that  should  be  pressed  to  the  disturbance 
of  your  serene  judgment,  in  any  disposition  of  the  case.  Now, 
gentlemen,  let  us  look  a little  into  the  nature  of  the  crime,  and  into 
the  condition  of  the  law. 

2.  Principles  governing  the  punishment  of  crime. 

The  penalty  of  the  crime  of  piracy  or  robbery  at  sea  stands  on 
our  statute  books  heavier  than  the  penalty  assigned  for  a similar 
crime  committed  on  land;  which  is,  in  fact,  similar,  so  far  as  con- 
cerns its  being  an  act  of  depredation.  It  may  be  said,  and  it  is 
often  argued,  that,  when  the  guilt  of  two  offenses  is  equal,  society 
transcends  its  right  and  duty  when  it  draws  a distinction  in  its 
punishments;  and  it  may  be  said,  as  has  been  fully  argued  to  you, 
at  least,  by  implication,  in  the  course  of  this  case,  that  the  whole 
duty  and  the  whole  responsibility  of  civil  governments,  in  the  ad- 
ministration of  criminal  law  and  the  punishment  of  crime,  has  to 
do  with  retributive  vengeance,  as  it  were,  on  the  moral  guilt  of  the 
prisoner.  Now,  gentlemen,  I need  not  say  to  you,  who  are  experi- 
enced at  least  in  the  common  inquiries  concerning  governments 
and  their  duties,  that,  as  a mere  naked  and  separate  consideration 
for  punishing  moral  guilt,  government  leaves,  or  should  leave, 
vengeance  where  it  belongs — to  Him  who  searches  the  heart  and 
punishes  according  to  its  secret  intents — drawing  no  distinction 
betw^een  the  wicked  purpose  which  fully  plans,  and  the  final  act 
which  executes  that  purpose.  The  great,  the  main  duty;  the  great, 
the  main  right  of  civil  society,  in  the  exercise  of  its  dominion  ovei 
the  liberties,  lives,  and  property  of  its  subjects,  is  the  good  of  the 
public,  in  the  prevention,  the  check,  the  discouragement,  the  sup- 
pression of  crime.  And  I am  sure  that  there  is  scarcely  one  of  us 
who,  if  guilt,  if  fault,  if  vice  could  be  left  to  the  punishment  of 
conscience  and  the  responsibility  of  the  last  and  great  assize,  with- 
out prejudice  to  society,  without  injury  to  the  good  of  others,  with- 
out, indeed,  being  a danger  and  a destruction  to  all  the  peace,  the 
happiness,  and  the  safety  of  communities,  would  not  readily  lay 
aside  all  his  share  in  the  vindictive  punishments  of  guilty  men. 
But  society,  framed  in  the  form  and  for  the  purposes  of  govern- 
ment, finds,  alas!  that  this  tribunal  of  conscience,  and  this  last  and 
future  accountability  of  another  world,  is  inadequate  to  its  protec- 
tion against  wickedness  and  crime  in  this. 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  379 


You  will  find,  therefore,  in  all,  even  the  most  enlightened  and 
most  humane  codes  of  laws,  that  some  necessary  attention  is  paid 
to  the  predominant  interest  which  society  has  in  preventing  crime. 
The  very  great  difficulty  of  detecting  it,  the  circumstances  of  se- 
crecy, and  the- chances  of  escape  on  the  part  of  the  criminal,  are 
considerations  which  enter  into  the  distribution  of  its  penalties. 
You  will  find,  in  a highly  commercial  community,  like  that  of  En- 
gland, and  to  some  extent — although,  I am  glad  to  say,  with  much 
less  severity — in  our  own,  which  is  also  a highly  commercial  'com- 
munity, that  frauds  against  property,  frauds  against  trade,  frauds 
in  the  nature  of  counterfeiting  and  forgery,  and  all  those  peaceful 
and  not  violent,  but  yet  pernicious  interferences  with  the  health 
and  necessary. activity  of  our  every-day  life,  require  the  infliction 
of  severe  penalties  for  what,  when  you  take  up  the  particular  ele- 
ments of  the  crime,  seems  to  have  but  little  of  the  force,  and  but 
little  of  the  depth  of  a serious  moral  delinquency. 

3.  Wisdom  and  justice  of  the  pardoning  power. 

The  severity  of  the  penalties  for  passing  counterfeit  money  are 
inflicted  upon  the  poor  and  ignorant  who,  in  so  small  a matter  as  a 
coin  of  slight  value,  knowingly  and  intelligently,  under  even  the 
strongest  impulses  of  poverty,  are  engaged  in  the  offense.  Now, 
therefore,  when  commercial  nations  have  been  brought  to  the  con- 
sideration of  what  their  enactments  on  the  subject  of  piracy  shall 
be,  they  have  taken  into  account  that  the  very  offense  itself  re- 
quires that  its  commission  should  be  outside  of  the  active  and  effi- 
cient protection  of  civil  society;  that  the  commission  of  the  crime 
involves,  on  the  part  of  the  criminals,  a fixed,  deliberate  determina- 
tion and  preparation;  and  that  the  circumstances  under  which  the 
victims,  either  in  respect  of  their  property  or  of  their  lives,  are 
exposed  to  these  aggressions,  are  such  as  to  make  it  a part  of 
the  probable  course  of  the  crime,  that  the  most  serious  evils  and 
the  deepest  wounds  may  be  inflicted.  When  a crime,  not  con- 
demned in  ethics  or  humanity,  and  which  the  positive  enactments 
of  the  law  have  made  highly  penal,  yet  contains  within  itself  cir- 
cumstances that  appeal  very  strongly  to  whatever  authority  or 
magistrate  has  rightful  control  of  the  subject  for  a special  exemp- 
tion, and  special  remission,  and  special  concession  from  the  penalty 
of  the  law,  where  and  upon  what  principle  does  a wise  and  just,  a 
humane  and  benignant  government,  dispose  of  that  question  ? I 
agree  that,  if  crimes  which  the  good  of  society  requires  to  be  sub- 


380 


SPEECH  OF  WILLIAM  M.  EYARTS 


jected  to  harsh  penalties,  must  stand,  always  and  irrevocably,  upon 
the  mere  behest  of  judicial  sentence,  there  would  be  found  an  op- 
pression and  a cruelty  in  some  respects,  that  a community  having 
a conscientious  adherence  to  right  and  humanity  would  scarcely 
tolerate.  Where,  then,  does  it  wisely  bestow  all  the  responsibility, 
and  give  all  the  power  that  belongs  to  this  adjustment,  according 
to  the  particular  circumstances  of  the  moral  and  personal  guilt, 
which  must  be  necessary,  and  is  always  conceded  ? Why,  confess- 
edly, to  the  pardoning  power  alluded  to  on  one  side  or  the  other 
— though  chiefly  on  the  part  of  the  prisoners’  counsel — in  the 
course  of  this  trial.  You  will  perceive  at  once  what  the  differ- 
ence is  between  a court  or  a jury,  or  a public  prosecuting  officer, 
yielding  to  particular  circumstances  of  actual  or  of  general  qualifi- 
cation of  a crime  charged,  so  that  the  law  shall  be  thwarted,  and 
the  certainty  and  directness  of  judicial  trial  and  sentence  be  made 
the  sport  of  sympathy,  or  of  casual  or  personal  influences,  and 
placing  the  pardoning  power  where  it  shall  be  governed  by  the 
particular  circumstances  of  each  case,  so  that  its  exercise  shall 
have  no  influence  in  breaking  down  the  authority  of  law,  or  in  dis- 
turbing the  certainty,  directness  and  completeness  of  judicial  rules. 
For,  it  is  the  very  nature  of  a pardon,  committed  to  the  chief 
magistrate  of  the  federal  Union  in  cases  of  which  this  court  has 
jurisdiction,  and  to  the  chief  magistrate  of  every  State  in  the  Union 
in  cases  of  which  the  State  tribunals  take  cognizance,  that  it  is  a 
recognition  of  the  law,  and  of  the  sentence  of  the  law,  and  leaves 
the  laws  undisturbed,  the  rules  for  the  guidance  of  men  unaffected, 
the  power  and  strength  of  the  government  unweakened,  the  force 
of  the  judiciary  unparalyzed,  and  yet  disposes  of  each  case  in  a 
way  that  is  just,  or,  if  not  just,  is  humane  and  clement,  where  the 
pardon  is  exercised. 

Now,  gentlemen,  I shall  say  nothing  more  on  the  subject  of 
pardon.  It  is  a thing  with  which  I have  nothing  to  do;  with  which 
this  learned  court  has  nothing  to  do;  with  which  you,  as  jurymen, 
have  nothing  to  do,  beyond  the  fact  that  this  beneficent  govern- 
ment of  ours  has  not  omitted  from  its  arrangement,  in  the  admin- 
istration of  its  penal  laws,  this  divine  attribute  of  mercy. 

4.  Elements  of  the  crime  of  piracy. 

Now,  there  being  the  crime  of  piracy  or  robbery  on  the  high 
seas,  which  the  interests  of  society,  the  protection  of  property  and 
of  life,  the  maintenance  of  commerce,  oblige  every  State  and  every 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  381 


nation,  like  ours,  to  condemn — what  are  the  circumstances,  what 
are  the  acts,  that,  in  view  of  the  law,  amount  to  piracy  ? You  will 
understand  me  that,  for  the  present,  I entirely  exclude  from  your 
consideration  any  of  the  particular  circumstances  which  are  sup- 
posed to  give  to  the  actual  crime  perpetrated  a public  character, 
lifting  it  out  of  the  penal  law  that  you  administer,  and  out  of  the 
region  of  private  crime,  into  a field  of  quite  different  considera- 
tions. They  are,  undoubtedly,  that  the  act  done  shall  be  with  in- 
tent of  depriving  the  person  who  is  in  possession  of  property,  as  its 
owner,  or  as  the  representative  of  that  owner,  of  that  property. 
That  is  what  is  meant  by  the  Latin  phrase,  with  which  you  are 
quite  as  familiar  now,  at  least,  as  I,  animo  furandi — with  the  in- 
tention of  despoiling  the  owner  of  that  which  belongs  to  him. 
And,  to  make  up  the  crime  of  robbery  on  land,  in  distinction  from 
larceny  or  theft,  as  we  generally  call  it  (though  theft,  perhaps,  in- 
cludes all  the  varieties  of  crime  by  which  the  property  of  another  is 
taken  against  his  will),  robbery  includes,  and  piracy,  being  robbery 
at  sea,  includes  the  idea  that  it  is  done  with  the  application,  or  the 
threat,  or  the  presence  of  force.  There  must  be  actual  violence, 
or  the  presence  and  exhibition  of  power  and  intent  to  use  violence, 
which  produces  the  surrender  and  delivery  of  the  property.  Such 
are  the  ingredients  of  robbery  and  piracy.  And,  gentlemen,  these 
two  ingredients  are  all;  and  you  must  rob  one  or  the  other  of  them 
of  this,  their  poison,  or  the  crime  is  completely  proved,  when  the 
fact  of  the  spoliation,  with  these  ingredients,  shall  have  been 
proved.  The  use  that  the  robber  or  the  pirate  intends  to  make  of 
the  property,  or  the  justification  which  he  thinks  he  has  by  way  of 
retaliation,  by  way  of  injury,  by  way  of  provocation,  by  way  of  any 
other  occasion  or  motive  that  seems  justifiable  to  his  own  con- 
science and  his  own  obedience  to  any  form  whatever  of  the  higher 
law,  has  nothing  to  do  with  the  completeness  of  the  crime,  unless 
it  come  to  what  has  been  adverted  to  by  the  learned  counsel,  and 
displayed  before  you  in  citations  from  the  law-books — to  an  honest, 
however  much  it  may  be  mistaken  and  baseless,  idea  that  the  prop- 
erty is  really  the  property  of  the  accused  robber,  of  which  he  is 
repossessing  himself  from  the  party  against  whom  he  makes  the 
aggression. 

5.  Opinions  or  views  as  to  property  rights  in  general, 

NO  DEFENSE. 

Now,  unless,  in  the  case  proved  of  piracy,  or  robbery  on  land, 
there  be  some  foundation  for  the  suggestion  that  the  willful  and  in- 


382 


SPEECH  OF  WILLIAM  M.  EVART3 


tentional  act  of  depriving  a party  of  his  property  rests  upon  a 
claim  of  the  robber,  or  the  pirate,  that  it  is  his  own  property  (how- 
ever baseless  may  be  the  claim),  you  cannot  avoid,  you  cannot 
defeat,  the  criminality  of  the  act  of  robbery,  within  the  intention 
of  the  law,  by  showing  that  the  robber  or  the  pirate  had,  in  the 
protection  of  his  own  conscience,  and  in  the  government  of  his  own 
conduct,  certain  opinions  or  views  that  made  it  right  for  him  to 
execute  that  purpose.  Thus,  for  instance,  take  a case  of  morals: 
A certain  sect  of  political  philosophers  have  this  proposition  as  a 
basis  of  all  their  reasoning  on  the  subject  of  property,  that  is,  that 
property,  the  notion  of  separate  property  in  anything,  as  belonging 
to  anybody,  is  theft;  that  the  very  notion  that  I can  own  anything, 
whatever  it  may  be,  and  exclude  other  people  from  the  enjoyment 
of  it,  is  a theft  made  by  me,  a wrongful  appropriation,  when  all 
the  good  things  in  this  world,  in  the  intention  of  Providence,  were 
designed  for  the  equal  enjoyment  of  all  the  human  race.  Well, 
now,  a person  possessed  of  that  notion  of  political  economy  and  of 
the  moral  rights  and  duties  of  men,  might  seek  to  avail  himself  of 
property  owned  and  enjoyed  by  another,  on  the  theory  that  the 
person  in  possession  of  it  was  the  original  thief,  and  that  he  was 
entitled  to  share  it.  I need  not  say  to  you,  that  all  these  ideas  and 
considerations  have  nothing  whatever  to  do  with  the  consideration 
of  the  moral  intent  with  which  a person  is  despoiled  of  his  property. 

Now,  with  regard  to  force,  I do  not  understand  that  my  learned 
friends  really  make  any  question,  seriously,  upon  the  general  prin- 
ciples of  what  force  is,  or  upon  the  facts  of  this  case,  that  this 
seizure  of  the  Joseph  by  the  Savannah  had  enough  of  force — the 
threat,  the  presence  and  exhibition  of  power — and  of  the  intent  to 
use  it,  to  make  the  capture  one  of  force,  if  the  other  considera- 
tions which  are  relied  upon  do  not  lift  it  out  of  that  catalogue  of 
crime. 

6.  An  exhibition  of  force  sufficient  evidence. 

It  is  true  that  the  learned  counsel  who  last  addressed  you, 
seemed  to  intimate  in  some  of  his  remarks,  near  the  close  of  his 
very  able  and  eloquent  and  interesting  address,  that  there  was  not 
any  force  about  it,  that  the  master  of  the  Joseph  was  not  threat- 
ened, that  there  was  no  evidence  that  the  cannon  was  even  loaded, 
and  that  it  never  had  been  fired  off.  Well,  gentlemen,  the  very 
illustration  which  he  used  of  what  would  be  a complete  robbery  on 
land — the  aggressor  possessing  a pistol  and  asking,  in  the  politest 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


383 


manner,  for  your  money — relieves  me  from  arguing  that  you  must 
fire  either  a cannon  or  a pistol  before  you  have  evidence  of  force. 
If  our  rights  stand  on  that  proposition,  that  when  a pistol  is  pre- 
sented at  our  breast,  and  we  surrender  our  money,  we  must  wait 
for  the  pistol  to  be  fired  before  the  crime  is  completed,  you  will  see 
that  the  terrors  of  the  crime  of  robbery  do  not  go  very  far  towards 
protecting  property  or  person,  which  is  the  object  of  it. 

7.  Nature  of  the  defense  and  province  of  the  jury. 

When,  gentlemen,  the  government,  within  a statute  which,  in 
the  judgment  of  the  court,  shall  be  pronounced  as  being  lawfully 
enacted  under  the  Constitution  of  the  United  States,  has  completed 
the  proof  of  the  circumstances  of  the  crime  charged,  it  is  entitled 
at  your  hands  to  a conviction  of  the  accused,  unless,  by  proof  ad- 
duced on  his  part,  he  shall  so  shake  the  consistency  and  complete- 
ness of  the  proof  on  the  part  of  the  government,  or  shall  introduce 
such  questions  of  uncertainty  and  doubt,  that  the  facts  shall  be 
disturbed  in  your  mind,  or  unless  he  shall  show  himself  in  some 
predicament  of  protection  or  right  under  the  law  (and  by  ‘‘  under 
the  law  ” I mean,  under  the  law  of  the  land  where  the  crime  is 
punishable,  and  where  the  trial  and  the  sentence  are  lawfully  attrib- 
uted to  be),  or  unless  he  shall  introduce  some  new  facts  which, 
conceding  the  truthfulness  and  the  sufficiency  of  the  case  made  by 
the  government,  shall  still  interpose  a protection,  in  some  form, 
against  the  application  of  the  penalty  of  the  law.  I take  it  that  I 
need  not  say  to  you  that  this  protection  or  qualification  of  the 
character  of  the  crime  must  be  by  the  law  of  the  land;  and  whether 
it  comes  to  be  the  law  of  the  land  by  its  enactment  in  the  statutes 
of  the  United  States,  or  by  the  adoption  and  incorporation  into  the 
law  of  the  land  of  the  principles  of  the  law  of  nations,  is  a point 
quite  immaterial  to  you.  You  are  not  judges  of  what  the  statutes 
of  the  United  States  are,  except  so  far  as  their  interpretation  may 
rightfully  become  a subject  of  inquiry  by  the  jury,  in  the  sense  of 
whether  the  crime  is  within  the  intent  of  the  act,  in  the  circum- 
stances proved.  You  are  not  judges  of  what  the  law  of  nations  is, 
in  the  first  place;  nor  are  you  judges  of  how  much  of  the  law  of 
nations  has  been  adopted  or  incorporated  into  the  system  of  our 
government  and  our  laws,  by  the  authority  of  its  Congress  or  of 
its  courts. 

Whether,  as  I say  to  you,  there  is  a defense,  or  protection,  or 
qualification  of  the  acts  and  transactions  which,  in  their  naked 


38'i  SPEECH  OF  WILLIAM  M.  EVARTS 

nature  and  in  their  natural  construction,  are  violent  interferences 
with  the  rights  of  property,  against  the  statute,  and  the  protection 
of  property  intended  by  the  statute;  whether  the  circumstances  do 
change  the  liability  or  responsibility  of  the  criminal,  by  the  intro- 
duction of  a legal  defense  under  the  law  of  nations,  or  under  the 
law  of  the  land  in  any  other  form,  is  a question  undoubtedly  for 
the  court,  leaving  to  you  always  complete  control  over  the  ques- 
tions of  fact  that  enter  into  the  subject.  So  that  the  suggestion 
also  dropped  by  my  learned  friend,  at  the  close  of  his  remarks,  that 
any  such  arrangement  would  make  the  jury  mere  puppets  and  give 
them  nothing  to  do,  finds  no  place.  It  would  not  exclude  from 
your  consideration  any  matters  of  fact  which  go  to  make  up  the 
particular  condition  of  public  affairs,  or  of  the  public  relations  of 
the  community  towards  each  other,  in  these  conditions  which  dis- 
turb the  land,  provided  the  court  shall  hold  and  say  that,  on  such 
a state  of  facts  existing,  or  being  believed  by  you,  there  is  intro- 
duced a legal  qualification  or  protection  against  the  crime  charged. 
But  if  it  should  be  held  that  all  these  facts  and  circumstances,  to 
the  extent  and  with  the  effect  that  is  claimed  for  them  by  the 
learned  counsel  as  matter  of  fact,  yet  as  matter  of  law  leave  the 
crime  where  it  originally  stood,  being  of  their  own  nature  such  as 
the  principles  of  law  do  not  permit  to  be  interposed  as  a protection 
and  a shield,  why,  then  you  take  your  law  on  the  subject  in  the 
same  way  as  you  do  on  every  other  subject,  from  the  instructions 
of  the  learned  and  responsible  bench,  whose  errors,  if  committed, 
can  be  corrected;  while  your  confusion  between  your  province  and 
the  province  of  the  court  would,  both  in  this  case  and  in  other  cases, 
and  sometimes  to  prejudice  of  the  prisoner,  and  against  his  life  and 
safety  when  prejudices  ran  that  way,  confound  all  distinctions; 
and,  in  deserting  your  duty  to  usurp  that  of  another  portion  of  the 
court,  you  would  have  done  what  you  could,  not  to  uphold,  but  to 
overthrow  the  laws  of  your  country  and  the  administration  of  jus- 
tice according  to  law,  upon  which  the  safety  of  all  of  us,  at  all 
times,  in  all  circumstances,  depends. 

Mr.  Evarts  here  reviewed  the  evidence  showing  the  facts,  substantially  as 
stated  at  page  343.  He  then  spoke  of  the  imperative  duty  which  devolved  upon 
government  to  protect  its  citizens  and  their  property.  He  claimed  upon  the  evi- 
dence that  the  acts  of  the  prisoners  were  entirely  voluntary,  that  their  motives 
were  selfish,  and  proceeded  from  a desire  for  private  gain  and  not  patriotic  de- 
votion ; and  argued  that  there  was  nothing  in  the  acts  of  Congress  relating  to 
piracy  contrary  to  humanity  or  common  sense.  That  the  United  States,  by 
treaty  with  France  and  the  Netherlands,  agreed  that  any  person  of  either  nations 


IN  THE  CASE  OF  THE  ‘‘SAVANNAH  PRIVATEERS.’ 


385 


taking  letters  of  marque  or  commissions  from  any  country  with  which  either 
might  be  at  war,  should  be  punished  as  pirates.  (Citing  Treaty  of  Commerce 
with  France,  Feb.  6th,  1778,  art.  21,  Stat.  at  L.  vol.  8,  p.  24  ; Treaty  between 
Netherlands  and  U.  S.,  1872,  art.  19,  Stat.  at  L.  vol.  8,  p.  44.)  That  it  was  the 
uniform  policy  of  our  government  to  extirpate  private  war  from  the  ocean. 
After  referring  to  the  evidence  to  show  that  there  has  been  sufficient  exhibition 
of  force  on  the  part  of  the  defendants,  he  continued  : 

8.  Privateering  under  the  law  of  nations,  and  laws 

OF  WAR. 

I do  not  know  that  I need  say  anything  to  you  about  pri  /ateer- 
ing,  further  than  to  present  somewhat  distinctly  what  the  qualifica- 
tions, what  the  conditions,  and  what  the  purposes  of  privateering 
are.  In  the  first  place,  privateering  is  a part  of  war,  or  is  a part  of 
the  preliminary  hostile  aggressions  which  are  in  the  nature  of  a 
forcible  collision  between  sovereign  powers.  Now,  what  is  the  law 
of  nations  on  this  subject,  and  how  does  there  come  to  be  a law  of 
nations;  and  what  is  its  character,  what  are  its  sanctions,  and  who 
are  parties  to  it?  We  all  know  what  laws  are  when  they  proceed 
from  a government  and  operate  upon  its  citizens  and  its  subjects. 
Law,  then,  comes  with  authority,  by  right,  and  so  as  to  compel 
obedience;  and  laws  are  always  framed  with  the  intent  that  there 
shall  be  no  opportunity  of  violent  or  forcible  resistance  to  them,  or 
of  violent  or  forcible  settlement  of  controversies  under  them,  but 
that  the  power  shall  be  submitted  to,  and  the  inquiry  as  to  right 
proceed  regularly  and  soberly  under  the  civil  and  criminal  tribunals. 
But  when  we  come  to  nations,  although  they  have  relations  towards 
each  other,  although  they  have  duties  towards  each  other,  although 
they  have  rights  towards  each  other,  and  although,  in  becoming 
nations,  they  nevertheless  are  all  made  up  of  human  beings,  under 
the  general  laws  of  human  duty,  as  given  by  the  common  lawgiver, 
God,  yet  there  is  no  real  superior  that  can  impose  law  over  them 
or  enforce  it  against  them.  And  it  is  only  because  of  that,  that 
war,  the  scourge  of  the  human  race — and  it  is  the  great  vice  and 
defect  of  our  social  condition  that  it  cannot  be  avoided — comes 
in  as  the  only  arbiter  between  powers  that  have  no  common  su- 
perior. I am  sure  that  the  little  time  I shall  spend  upon  this  topic 
will  be  serviceable;  as,  also,  in  some  more  particular  considerations 
as  to  what  is  called  a state  of  war,  and  as  to  the  conditions  which 
give  and  create  a war  between  the  different  portions  of  our  unhappy 
country  and  its  divided  population. 

So,  then,  nations  have  no  common  superior  whom  they  recog- 
25 


386 


SPEECH  OF  WILLIAM  M.  EVARTS 


nize  under  this  law,  which  they  have  made  for  themselves  in  the 
interest  of  civilization  and  humanity,  and  which  is  a law  of  natural 
right  and  natural  duty,  so  far  as  it  can  be  applied  to  the  relations 
which  nations  hold  to  one  another.  They  recognize  the  fact  that 
one  nation  is  just  as  good,  as  matter  of  right,  as  another;  that 
whether  it  be  the  great  powers  of  Russia,  of  England,  of  France, 
of  the  United  States  of  America,  or  of  Brazil,  or  whether  it  be  one 
of  the  feeble  and  inferior  powers,  in  the  lowest  grade,  as  one  of  the 
separate  Italian  kingdoms,  or  the  little  republic  of  San  Marino, 
whose  territories  are  embraced  within  the  circuit  of  a few  leagues, 
or  one  of  the  South  American  States,  scarcely  known  as  a power  in 
the  affairs  of  men;  yet,  under  the  proposition  that  the  States  are 
equal  in  the  family  of  nations,  they  have  a right  to  judge  of  their 
quarrels,  and,  finding  occasions  for  quarrel,  have  a right  to  assert 
them,  as  matter  of  force,  in  the  form  of  war.  And  all  the  other 
nations,  however  much  their  commerce  may  be  disturbed  and  in- 
jured, are  obliged  to  concede  certain  rights  that  are  called  the 
rights  of  war.  We  all  understand  what  the  rights  of  war  are  on 
the  part  of  two  people  fighting  against  each  other.  A general  right 
is  to  do  each  other  as  much  injury  as  they  can;  and  they  are  very 
apt  to  avail  themselves  of  that  right.  There  are  certain  meliora- 
tions against  cruelty,  which,  if  a nation  should  transgress,  probably 
other  nations  might  feel  called  upon  to  suppress  the  extravagance. 
But,  as  a general  thing,  while  two  nations  are  fighting,  other  nations 
stand  by  and  do  not  intervene.  But  the  way  other  nations  come  to 
have  any  interest,  and  to  have  anything  to  say  whether  there  is  war 
between  sovereign  powers,  grows  out  of  certain  rights  of  war  which 
the  law  of  nations  gives  to  the  contending  parties  against  neutrals. 
For  instance  : Suppose  Spain  and  Mexico  were  at  war.  Well,  you 
would  say,  what  is  that  to  us  ? It  is  this  to  us.  On  the  high  seas, 
a naval  vessel  of  either  power  has  a right,  in  pursuit  of  its  designs 
against  the  enemy,  to  interrupt  the  commerce  of  other  nations  to  a 
certain  extent.  It  has  a right  of  visitation  and  of  search  of  vessels 
that  apparently  carry  our  flag.  Why  ? In  order  to  see  whether  the 
vessel  be  really  our  vessel,  or  whether  our  flag  covers  the  vessel  of 
its  enemy,  or  the  property  of  its  enemy.  It  has  also  a right  to  push 
its  inquiries  farther,  and  if  it  finds  it  to  be  a vessel  of  the  United 
States  of  America,  to  see  whether  we  are  carrying  what  are  called 
contraband  of  war  into  the  ports  of  its  enemy;  and  if  so,  to  con- 
fiscate it  and  her.  Each  of  the  powers  has  a right  to  blockade  the 
ports  of  the  other,  and  thus  to  break  up  the  trade  and  pursuits  of 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  387 


the  people  of  other  nations;  and  that  without  any  quarrel  with  the 
other  people.  And  so  you  see,  by  the  law  of  nations,  this  state  of 
war  which  might  at  first  seem  to  be  only  a quarrel  between  the  two 
contending  parties,  really  becomes,  collaterally,  and  in  some  cases 
to  a most  important  extent,  a matter  of  interest  to  other  nations  of 
the  globe.  But  however  much  we  suffer,  however  much  we  are 
embarrassed  (as,  for  example,  in  the  extreme  injury  to  British  com- 
merce and  British  interests  now  inflicted  in  this  country — the 
blockade  keeping  out  their  shipping  and  preventing  shipments  of 
cotton  to  carry  on  their  industry),  we  must  submit,  as  the  English 
people  submit,  in  the  view  their  government  has  chosen  to  take  of 
these  transactions. 

Now,  gentlemen,  this  being  the  law  of  nations,  you  will  per- 
ceive that,  as  there  is  no  human  earthly  superior,  so  there  are  no 
courts  that  can  lay  down  the  law,  as  our  courts  do  for  our  people, 
or  as  the  courts  of  England  do  for  their  people.  There  are  no 
courts  that  can  lay  down  the  law  of  nations,  so  as  to  bind  the 
people  of  another  country,  except  so  far  as  the  courts  of  that 
country,  recognizing  the  sound  principles  of  morality,  humanity 
and  justice  obtaining  in  the  government  and  conduct  of  nations 
towards  each  other,  adopt  them  in  their  own  courts.  So,  when  my 
learned  friends  speak  of  the  law  of  nations  as  being  the  law  that  is 
in  force  here,  and  that  may  protect  these  prisoners  in  this  case 
against  the  laws  of  the  United  States  of  America,  why,  they  speak 
in  the  sense  of  lawyers,  or  else  in  a sense  that  will  confuse  your 
minds,  that  is  to  say,  that  the  law  of  nations,  as  the  court  will  ex- 
pound and  explain  it,  has  or  has  not  a certain  effect  upon  what 
would  be  otherwise  the  plain  behests  of  the  statute  law. 

9.  Rights  of  neutral  powers,  with  respect  to  privateers, 

IN  A STATE  OF  CIVIL  WAR. 

Now,  it  is  a part  of  the  law  of  nations,  except  so  far  as  between 
themselves  they  shall  modify  it  by  treaty  (two  instances  of  which  I 
have  read  in  the  diplomacy  of  our  own  country,  and  a most  ex- 
tensive instance  of  which  is  to  be  found  in  the  recent  treaty  of 
Paris,  whereby  the  law  of  nations,  in  respect  to  privateering,  has 
been  so  far  modified  as  to  exclude  privateering  as  one  of  the  means 
of  war),  outside  of  particular  arrangements  made  by  civilized  na- 
tions, it  was  a part  of  the  original  law  of  war  prevailing  among 
nations,  that  any  nation  engaged  in  war  might  fit  out  privateers  in 
aid  of  its  belligerent  or  warlike  purposes  or  movements.  No  diffi- 


388 


SPEECH  OF  WILLIAM  M.  EVARTS 


culty  arose  about  this  when  war  sprang  up  between  two  nations 
that  stood  before  the  world  in  their  accredited  and  acknowledged 
independence.  If  England  and  France  went  to  war,  or  if  England 
and  the  United  States,  as  in  1812,  went  to  war,  this  right  of  fitting 
out  privateers  would  obtain  and  be  recognized.  But  there  arises, 
in  the  affairs  of  nations,  a condition  much  more  obscure  and  un- 
certain than  this  open  war  between  established  powers,  and  that  is, 
when  dissension  arises  in  the  same  original  nation;  when  it  pro- 
ceeds from  discontent,  sedition,  private  or  local  rebellion,  into  the 
inflammation  of  great  military  aggression;  and  when  the  parties 
assume,  at  least  (assume,  I say),  to  be  rightfully  entitled  to  the  po- 
sition of  powers,  under  the  law  of  nations,  w^arring  against  one 
another.  The  South  American  States,  in  their  controversy  which 
separated  them  from  the  parent  country,  and  these  States  when 
they  were  colonies  of  Great  Britain,  presented  instances  of  these 
domestic  dissensions  between  the  different  parts  of  the  same  gov- 
ernment, and  the  rights  of  war  were  claimed.  Now,  what  is  the 
duty  of  other  nations  in  respect  to  that  ? Why,  their  duty  and  right 
is  this,  that  they  may  either  accord  to  these  struggling,  rebellious, 
revolted  populations  the  rights  of  war,  so  far  as  to  recognize  them 
as  belligerents,  or  not;  but  whether  they  will  do  so  or  not,  is  a 
question  for  their  governments,  and  not  for  their  courts  sitting  un- 
der and  by  authority  of  their  governments.  For  instance,  you  can 
readily  see  that  the  great  nations  of  the  earth,  under  the  influences 
upon  their  commerce  and  their  peace  which  I have  mentioned, 
may  very  well  refuse  to  tolerate  the  quarrel  as  being  entitled  to  the 
dignity  of  war.  They  may  say:  No,  no;  we  do  not  see  any  occa- 
sion for  this  war,  or  any  justice  or  benefit  that  is  to  be  promoted 
by  it;  we  do  not  see  the  strength  or  power  that  is  likely  to  make  it 
successful;  and  we  will  not  allow  a mere  attempt  or  effort  to  throw 
us  into  the  condition  of  submitting  to  the  disturbance  of  the  peace, 
or  the  disturbance  of  the  commerce  of  the  world.  Or,  they  may 
say:  We  recognize  this  right  of  incipient  war  to  raise  itself  and 
fairly  contend  against  its  previous  sovereign — not  necessarily  from 
any  sympathy,  or  taking  sides  in  it,  but  it  is  none  of  our  affair; 
and  the  principles  of  the  controversy  do  not  prevent  us  from  giving 
to  them  this  recognition  of  their  supposed  rights.  Now,  when  they 
have  done  that,  they  may  carry  their  recognition  of  right  and  power 
as  far  as  they  please,  and  stop  where  they  please.  They  may  say: 
We  will  tolerate  the  aggression  by  public  armed  vessels  on  the  seas, 
and  our  vessels  shall  yield  the  right  of  visitation  and  search  to 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  389 


them.  They  may  say:  We  will  extend  it  so  far  as  to  include  the 
right  of  private  armed  vessels,  and  the  rights  of  war  may  attend 
them;  or  they  may  refuse  to  take  this  last  step,  and  say:  We  will 
not  tolerate  the  business  of  privateering  in  this  quarrel.  And, 
whatever  they  do  or  say  on  that  subject,  their  courts  of  all  kinds 
will  follow. 

lo.  The  fact  that  the  South  had  been  recognized  as 

BELLIGERENTS,  IMMATERIAL. 

Apply  this  to  the  particular  trouble  in  our  national  affairs  that 
is  now  progressing  to  settle  the  fate  of  this  country.  France  and 
England  have  taken  a certain  position  on  this  subject.  I do  not 
know  whether  I accurately  state  it  (and  I state  it  only  for  the  pur- 
pose of  illustration,  and  it  is  not  material),  but,  as  I understand  it, 
they  give  a certain  degree  of  belligerent  right,  so  that  they  would 
not  regard  the  privateers  on  the  part  of  the  Southern  rebellion  as 
being  pirates,  but  they  do  not  accord  succor  or  hospitality  in  their 
ports  to  such  privateers.  Well,  now,  suppose  that  one  of  these 
privateers  intrudes  into  their  ports  and  their  hospitalities,  and 
claims  certain  rights.  Why,  the  question,  if  it  comes  up  before  a 
court  in  Liverpool  or  London,  will  be:  Is  the  right  within  the  credit 
and  recognition  which  their  government  has  given  ? And  only  that. 
So,  too,  our  government  took  the  position  in  regard  to  the  revolting 
States  of  South  America,  that  it  would  recognize  them  as  belliger- 
ents, and  that  it  would  not  hang,  as  pirates,  privateers  holding 
commissions  from  their  authority.  But  when  other  questions  came 
up,  as  to  whether  a particular  authority  from  this  or  that  self-styled 
power  should  be  recognized,  our  government  frowned  upon  it,  and 
would  not  recognize  it.  With  regard  to  Captain  Aury,  who  styled 
himself  Generalissimo  of  the  Floridas,  or  something  of  that  kind, 
when  Florida  was  a Spanish  province,  our  courts  said:  We  do  not 
know  anything  about  this;  his  commissions  are  good  for  nothing 
here;  our  government  has  not  recognized  any  such  contest  or  incip- 
ient nationality  as  this.  So,  too,  in  another  case,  where  there  was 
an  apparent  commission  from  one  struggling  power,  the  court  say: 
Our  government  does  not  recognize  that  power,  and  we  Jo  not,  in 
giving  any  rights  of  war  to  it;  but  the  court  say,  it  appears  in  the 
proof  that  this  vessel  claims  to  have  had  a commission  from  Buenos 
Ayres,  another  contending  power;  if  so,  that  is  a power  which  our 
government  recognizes;  and  the  case  must  go  down  for  further 
proof  on  that  point. 


390 


SPEECH  OF  WILLIAM  M.  EVARTS 


I confess  that,  if  the  views  of  my  learned  friends  are  to  prevail 
in  determining  questions  of  crime  and  responsibility  under  the  laws 
and  before  the  court,  and  are  to  be  accepted  and  administered,  I 
do  not  see  that  there  is  any  government  at  all.  For  you  have  every 
stage  of  government:  first,  government  of  right;  next,  a govern- 
ment in  fact;  next,  a government  trying  to  make  itself  a fact;  and, 
next,  a government  which  the  culprit  thinks  ought  to  be  a fact. 
Well,  if  there  are  all  these  stages  of  government,  and  all  these  au- 
thorities and  protections,  which  may  attend  the  acts  of  people  all 
over  the  world,  I do  not  see  but  every  court  and  every  jury  must, 
finally,  resolve  itself  into  the  great  duty  of  searching  the  hearts  of 
men  and  putting  its  sanctions  upon  pure  or  guilty  secret  motives, 
or  notions,  or  interpretations  of  right  and  wrong — -a  task  to  which 
you,  gentlemen  of  the  jury,  I take  it,  feel  scarcely  adequate. 

II.  The  condition  of  belligerents  no  protection  to 

CITIZENS. 

Now,  gentlemen,  I have  perhaps  wearied  you  a little  upon  this 
subject;  because  it  is  from  some  confusion  in  these  ideas:  first,  of 
what  the  law  of  nations  permits  a government  to  do,  and  how  it 
intrudes  upon  and  qualifies  the  laws  of  that  government;  and,  sec- 
ond, upon  what  the  rights  are  that  grow  out  of  civil  dissensions,  as 
towards  neutral  powers,  that  some  difficulty  and  obscurity  are  in- 
troduced into  this  case. 

If  the  court  please,  I maintain  these  propositions  in  conformity 
with  the  views  I have  heretofore  presented:  first,  that  the  law  of 
the  land  is  to  determine  whether  this  crime  of  piracy  has  been 
committed,  subject  only  to  the  province  of  the  jury  in  passing  upon 
the  facts  attending  the  actual  perpetration  of  the  offense;  and, 
second,  upon  all  the  questions  invoked  to  qualify,  from  the  public 
relations  of  the  hostile  or  contending  parties  in  this  controversy, 
the  attitude  that  this  government  holds  towards  these  contending 
parties  is  the  attitude  that  this  court,  deriving  its  authority  from 
this  government,  must  necessarily  hold  towards  them. 

I have  argued  this  matter  of  the  choice  and  freedom  of  a gov- 
ernment to  say  how  it  will  regard  these  civil  dissensions  going  on 
in  a foreign  nation,  as  if  it  had  some  application  to  this  contro- 
versy, in  which  we  are  the  nation,  and  this  court  is  the  court  of 
this  nation. 

But,  gentlemen,  the  moment  I have  stated  that,  you  will  see  that 
there  is  not  the  least  pretense  that  there  is  any  dispensing  power  in 


IN  THE  CASE  OF  THE  SAVANNAH  PRIVATEERS/’  391 


the  court,  or  that  there  has  been  any  dispensing  power  exercised 
by  our  government,  or  that  there  has  been  any  pardon,  or  any 
amnesty,  or  any  proclamation,  saving  from  the  results  of  crime 
against  our  laws  any  person  engaged  in  these  hostilities,  who  at  any 
time  has  owed  allegiance  and  obedience  to  the  government  of  the 
United  States.  Therefore  here  we  stand,  really  extricated  from 
all  the  confusion,  and  from  all  the  wideness  of  controversy  and  of 
comment  that  attends  these  remote  considerations  of  this  case,  that 
have  been  pressed  upon  your  attention,  as  if  they  were  the  case  it- 
self, on  the  part  of  our  learned  friend. 

Mr.  Evarts  here  discussed  the  constitutionality  of  the  act  of  1790,  and 
claimed  that  a citizen  who  accepted  a commission,  even  from  a foreign 
power,  nevertheless  continued  to  be  a citizen  within  the  meaning  of  the  act. 
(Citing  U.  S.  V.  Pirates.  5 Wheat.  202 ; “ The  Invincible,”  Opinions  Atty.-Gen. 
vol.  3,  p.  120.)  He  argued  that  Congress  had  power  to  govern  its  citizens  on  the 
high  seas,  notwithstanding  it  had  no  common-law  jurisdiction  on  the  subject 
of  crimes.  He  then  continued  : 

12.  Statement  of  the  views  advanced  by  the  defense. 

Now,  gentlemen,  if  the  court  please,  I come  to  a consideration 
of  the  political  theories  or  views  on  which  these  prisoners  are 
sought  to  be  protected  against  the  penalties  of  this  law.  In  that 
argument,  as  in  my  argument,  it  must  be  assumed  that  these  penal- 
ties, but  for  those  protections,  would  be  visited  upon  them;  for  we 
are  not  to  be  drawn  hither  and  thither  by  this  inquiry,  and  to  have 
it  said,  at  one  time,  that  the  crime  itself,  in  its  own  nature,  is  not 
proved,  and,  at  another  time,  that,  if  it  be  proved,  these  are  de- 
fenses. I have  said  all  I need  to  say,  and  all  I should  say,  about 
the  crime  itself.  The  law  of  the  case  on  that  point  will  be  given 
to  you  by  the  court,  and  if  it  should  be,  as  I suppose  it  must,  in 
accordance  with  that  laid  down  by  the  court  in  the  circuit  of  Penn- 
sylvania, then,  as  my  learned  friend  Mr.  Brady  has  said  of  that, 
that  he  could  not  see  how  the  jury  could  find  any  verdict  but 
guilty,  it  necessarily  follows,  if  that  is  a sound  view  of  the  law,  that 
you  cannot  find  any  other  verdict  but  guilty.  I proceed,  there- 
fore, to  consider  these  other  defenses  which  grow  out  of  the  particu- 
lar circumstances  of  the  piracy. 

Now,  there  are,  as  I suggested,  three  views  in  which  this  subject 
of  the  license,  or  authority,  or  protection  against  our  criminal  laws 
in  favor  of  these  prisoners  is  urged,  from  their  connection  with 
particular  occurrences  disclosed  in  the  evidence.  One  is,  that  they 


392 


SPEECH  OF  WILLIAM  M.  EVARTS 


are  privateers;  but  I have  shown  you  that,  to  be  privateers,  their 
commission  must  come  from  an  independent  nation,  or  from  an 
incipient  nation  which  our  government  recognizes  as  such.  There- 
fore, they  fail  entirely  to  occupy  that  explicit  and  clear  position 
under  the  law  of  the  land  and  the  law  of  nations.  But,  they 
say,  they  are  privateers  either  of  a nation  or  a power  that  exists, 
as  the  phrase  is,  de  jure^  that  has  a right  the  same  as  we,  or  En- 
gland, or  France;  or  of  a power  that  has  had  sufficient  force  and 
strength  to  establish  itself,  as  matter  of  fact.  Without  considering 
the  question  of  right,  as  recognized  under  the  system  of  nations, 
they  contend,  and  with  a great  deal  of  force  and  earnestness  in 
the  impression  of  their  views  upon  the  jury,  and  great  skill  and 
discretion  in  handling  the  matter;  they  contend  that  there  is  a 
state  of  civil  war  in  this  country,  and  that  a state  of  civil  war  gives 
to  all  nations  engaged  in  it,  against  the  government  with  which 
they  are  warring,  rights  of  impunity,  of  protection,  of  respect,  of 
regard,  of  courtesy,  which  belong  to  the  laws  of  war;  and  that, 
without  caring  to  say  whether  they  are  a government  or  ever  will 
be  a government,  so  long  as  they  fight  they  cannot  be  punished. 

That  is  the  proposition;  there  is  nothing  else  to  it.  They  come 
down  from  the  region  of  de  jure  government  and  de  facto  govern- 
ment, and  have  nothing  to  prove  but  the  rage  of  war  on  the  part 
of  rebels,  in  force  enough  to  be  called  war.  Then  they  say  that, 
by  their  own  act,  they  are  liberated  from  the  laws,  and  from  their 
duty  to  the  laws,  which  would  otherwise,  they  admit,  have  sway 
over  them,  and  against  which  they  have  not  as  yet  prevailed.  That 
is  the  proposition. 

Another  proposition  on  which  they  put  themselves  is,  that  what- 
ever may  be  the  law,  and  whatever  the  extent  of  the  facts,  if  any 
of  these  persons  believed  that  there  was  a state  of  war,  rightful  to 
be  recognized  and  believed,  in  good  faith,  that  they  were  fighting 
against  the  United  States  government,  they  had  a right  to  seize  the 
property  of  United  States  citizens;  and  that,  if  they  believed  that 
they  constituted  part  of  a force  co-operating,  in  any  form  or  effect, 
with  the  military  power  which  has  risen  up  against  the  United 
States  of  America,  then,  so  long  as  they  had  that  opinion,  they,  by 
their  own  act,  and  their  own  construction  of  their  own  act,  impose 
the  law  upon  this  government,  and  upon  this  bench,  and  upon  this 
jury,  and  compel  you  to  say  to  them  that  if,  in  taking,  in  a manner 
which  would  have  been  robbery,  this  vessel,  the  Joseph,  they  were 
also  fighting  against  the  United  States  of  America,  they  have  not 
committed  the  crime  of  piracy. 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.’ 


398 


13.  The  evidence,  as  to  civil  war,  and  the  right  of 

REVOLUTION. 

Now,  if  the  court  please,  and  gentlemen  of  the  jury,  let  us,  be- 
fore we  explore  and  dissect  these  propositions;  before  we  discover 
how  utterly  subversive  they  are  of  any  notions  of  government,  of 
fixity  in  the  interpretation  of  the  law,  or  certainty  in  the  enforce- 
ment of  it;  let  us  see  what  you  will  fairly  consider  as  being  proved, 
as  matter  of  fact,  concerning  the  condition  of  affairs  in  this  country. 
Let  us  see  what  legal  discrimination  or  description  of  this  state  of 
things  is  likely  to  be  significant  and  instructive,  in  determining  the 
power  and  authority  of  the  government,  and  the  responsibility  of 
these  defendants.  They  began  with  an  ordinance  of  South  Caro- 
lina, passed  on  the  20th  of  December  of  last  year,  which  in  form  and 
substance  simply  annulled  the  ordinance  of  that  State  with  which, 
as  they  say,  they  ratified  or  accepted  the  Constitution  of  the  United 
States.  They  then  went  on  with  similar  proceedings  on  the  part  of 
the  States  of  Georgia,  Alabama,  Mississippi,  and  Florida,  showing 
the  establishment  and  adoption  of  a provisional  Constitution,  by 
which  they  constituted  and  called  themselves  the  Confederate 
States  of  America.  They  proved,  then,  the  organization  of  the 
government,  the  election  of  Mr.  Davis  and  Mr.  Stephens  as  Presi- 
dent and  Vice-President,  and  the  appointment  of  secretaries  of  war 
and  of  the  navy,  and  other  portions  of  the  civil  establishment. 
They  proved,  then,  the  occurrences  at  Fort  Sumter,  and  gave  par- 
ticular evidence  of  the  original  acts  at  Charleston — the  firing  on 
the  Star  of  the  West,  and  the  correspondence  which  then  took 
place  between  Major  Anderson  and  the  governor  of  South  Caro- 
lina. They  then  went  on  to  prove  the  evacuation  of  Fort  Moultrie; 
the  storming  of  Fort  Sumter;  the  proclamation  of  the  President  of 
the  United  States,  of  the  15th  of  April,  calling  for  75,000  troops; 
Mr.  Davis’  proclamation,  of  the  17th  of  April,  inviting  privateers; 
and  then  the  President’s  proclamation,  of  the  19th  of  April,  de- 
nouncing the  punishment  of  piracy  against  privateers,  and  putting 
under  blockade  the  coasts  of  the  revolted  States.  The  laws  about 
privateering  passed  by  what  is  called  the  Confederate  government, 
have  also  been  read  to  you;  and  this  seems  to  complete  the  docu- 
mentary, and  constitutional,  and  statutory  proceedings  in  that  dis- 
affected portion  of  the  country.  But  what  do  the  prisoners  prove 
further  ? That  an  actual  military  conflict  and  collision  com- 
menced, has  proceeded,  and  is  now  raging  in  this  country,  wherein 
vre  find  not  one  section  of  the  country  engaged  in  a military  con- 


394 


SPEECH  OF  WILLIAM  M.  EVARTS 


test  with  another  section  of  the  country;  not  two  contending  fac- 
tions, in  the  phrase  of  Vattel,  dividing  the  nation  for  the  sake  of 
national  power;  but  the  government  of  the  United  States,  still 
standing,  without  the  diminution  of  one  tittle  of  its  power  and  dig- 
nity; without  the  displacement  or  disturbance  of  a single  function 
of  its  executive,  of  its  legislative,  of  its  judicial  establishments; 
without  the  disturbance  or  the  defection  of  its  army  or  its  navy; 
without  any  displacement  in  or  among  the  nations  of  the  world; 
without  any  retreat,  on  its  part,  or  any  repulsion,  on  the  part  of 
any  force  whatever,  from  its  general  control  over  the  affairs  of  the 
nation,  over  all  its  relations  to  foreign  States,  over  the  high  seas, 
and  over  every  part  of  the  United  States  themselves,  in  their  whole 
length  and  breadth,  except  just  so  far  as  military  occupation  and 
military  contest  have  controlled  the  peaceful  maintenance  of  the 
authority  and  laws  of  the  government. 

Now,  this  may  be  conceded  for  all  sides  of  the  controversy.  I 
do  not  claim  any  more  than  these  proofs  show,  and  what  we  all 
know  to  be  true;  and  I am  but  fair  in  conceding  that  they  do  show 
all  the  proportions  and  extent  which  make  up  a contest  by  the 
forces  of  the  nation,  as  a nation,  against  an  armed  array,  with  all 
the  form  and  circumstances,  and  with  a number  and  strength, 
which  make  up  military  aggression  and  military  attack  on  the  part 
of  these  revolting  or  disaffected  communities  or  people. 

14.  The  fact  of  actual  existence  of  war  immaterial. 

Now,  some  observations  have  been  made,  at  various  stages  of 
this  argument,  of  the  course  the  government  has  taken  in  its  decla- 
ration of  a blockade,  and  in  its  seizure  of  prizes  by  its  armed 
vessels,  and  its  bringing  them  before  the  prize  courts  ; and  my 
learned  friend,  Mr.  Brady,  has  done  me  the  favor  to  allude  to  some 
particular  occasion  on  which  I,  on  behalf  of  the  goverment,  in  the 
admiralty  court,  have  contended  for  certain  principles  which  would 
lead  to  the  judicial  confiscation  of  prizes  under  the  law  of  the  land, 
or  under  the  law  of  nations  adopted  and  enforced  as  part  of  the 
law  of  the  land.  Well,  gentlemen,  I understand  and  agree  that, 
for  certain  purposes,  there  is  a condition  of  war  which  forces 
itself  on  the  attention  and  the  duty  of  governments,  and  calls  on 
them  to  exert  the  power  and  force  of  war  for  their  protection  and 
maintenance.  And  I have  had  occasion  to  contend — and  the 
learned  courts  have  decided — that  this  nation,  undertaking  to  sup- 
press an  armed  military  rebellion  which  arrays  itseli,  by  land  and 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  395 


by  sea,  in  the  forms  of  naval  and  military  attack,  has  a right  to 
exert — under  the  necessary  principles  which  control  and  require 
the  action  of  a nation  for  its  own  preservation,  in  these  circum- 
stances of  danger  and  of  peril — not  only  the  usual  magisterial  force 
of  the  country;  not  only  the  usual  criminal  laws;  not  only  such 
civil  posses  or  aids  to  the  officers  of  the  law  as  may  be  obtained 
for  their  assistance;  but  to  take  the  array  and  the  navy,  the  strength 
and  the  manhood  of  the  nation,  which  it  can  rally  around  it,  and 
in  every  form,  and  by  every  authority,  human  and  divine,  suppress 
and  reduce  a revolt,  a rebellion,  a treason,  that  seeks  to  overthrow 
this  government  in,  at  least,  a large  portion  of  its  territory,  and 
among  a large  portion  of  its  people.  In  doing  so,  it  may  resort,  as 
it  has  resorted,  to  the  method  of  a warlike  blockade,  which,  by 
mere  force  of  naval  obstruction,  closes  the  harbors  of  the  disaffected 
portion  of  the  country  against  all  commerce.  Having  done  that, 
it  has  a right,  in  its  admiralty  courts,  to  adjudicate  upon  and  con- 
demn as  prizes,  under  the  laws  of  blockade,  all  vessels  that  shall 
seek  to  violate  the  blockade.  Nor,  gentlemen,  have  I ever  denied, 
nor  shall  I here  deny,  that,  when  the  proportions  of  a civil  dis- 
sension or  controversy  come  to  the  port  and  dignity  of  war,  good 
sen^e  and  common  intelligence  require  the  government  to  recognize 
it  as  a question  of  fact,  according  to  the  actual  circumstances  of 
the  case,  and  to  act  accordingly.  I,  therefore,  have  no  difficulty  in 
conceding  that,  outside  of  any  question  of  law  and  right;  outside 
of  any  question  as  to  whether  there  is  a government  down  there, 
whether  nominal  or  real,  or  that  can  be  described  as  having  any 
consistency  of  any  kind,  under  our  law  and  our  government,  there 
is  prevailing  in  this  country  a controversy,  which  is  carried  on  by 
the  methods,  and  which  has  the  proportions  and  extent,  of  what 
we  call  war. 

15.  War  defined. — The  plea  of  war  a confession  of 

TREASON. 

War,  gentlemen,  as  distinguished  from  peace,  is  so  distinguished 
by  this  proposition:  that  it  is  a condition  in  which  force  on  one 
side  and  force  on  the  other  are  the  means  used  in  the  actual  pros- 
ecution of  the  controversy.  Now,  gentlemen,  if  the  court  please, 
I believe  that  that  is  all  that  can  be  claimed,  and  all  that  has  been 
claimed,  on  behalf  of  these  prisoners,  in  regard  to  the  actual  facts 
and  the  condition  of  things  in  this  country.  And  I admit  that,  if 
this  government  of  ours  were  not  a party  to  this  controversy;  if  it 


396 


SPEECH  OF  WILLIAM  M.  EVARTS 


looked  on  it  from  the  outside,  as  England  and  France  have  done, 
our  government  would  have  had  the  full  right  to  treat  these  con- 
tending parties,  in  its  courts  and  before  its  laws,  as  belligerents,  en- 
gaged in  hostilities,  as  it  would  have  had  an  equal  right  to  take  the 
opposite  course.  Which  course  it  would  have  taken,  I neither 
know,  nor  should  you  require  to  know. 

But  I answer  to  the  whole  of  this,  if  the  court  please,  that  it  is 
a war  in  which  the  government  recognizes  no  right  whatever  on  the 
part  of  the  persons  with  whom  it  is  contending;  and  that,  in  the 
eye  of  the  law  as  well  as  in  the  eye  of  reason  and  sound  political 
morality,  every  person  who  has,  from  the  beginning  of  the  first  act 
of  levying  war  against  the  United  States  until  now,  taken  part  in 
this  war,  actively  and  effectively,  in  any  form;  who  has  adhered  to 
the  rebels;  who  has  given  aid,  information,  or  help  of  any  kind, 
wherever  he  lives,  whether  he  sends  it  from  New  Hampshire  or 
New  York,  from  Wisconsin  or  from  Baltimore,  whether  he  be  found 
within  or  without  the  armed  lines,  is,  in  his  own  overt  actions  or 
open  espousal  of  the  side  of  this  warring  power  against  the  govern- 
ment of  the  United  States,  a traitor  and  a rebel.  I do  not  know 
that  there  is  any  proposition  whatever,  of  law,  or  any  authority 
whatever,  that  has  been  adduced  by  my  learned  friends,  in  which 
they  will  claim,  as  matter  of  law,  that  they  are  not  rebels.  I in- 
vited the  attention  of  my  learned  friends,  as  I purposed  to  call  that 
of  the  court,  to  the  fact  that  the  difficulty  about  all  this  business 
was,  that  the  plea  of  authority  or  of  war,  which  these  prisoners  in- 
terposed against  the  crime  of  piracy,  was  nothing  but  a plea  of  their 
implication  in  treason.  I would  like  to  hear  a sober  and  solemn 
proposition  from  any  lawyer,  that  a government,  as  matter  of  law, 
and  a court,  as  matter  of  law,  cannot  proceed  on  an  infraction  of  a 
law  against  violence  either  to  person  or  property,  instead  of  pro- 
ceeding on  an  indictment  for  treason.  The  facts  proved  must,  of 
course,  maintain  the  personal  crime;  and  there  are  many  degrees 
of  treason,  or  facts  of  treason,  which  do  not  include  violent  crime. 
But  to  say  that  a person  who  has  acted  as  a rebel  cannot  be  in- 
dicted as  an  assassin,  or  that  a man  who  has  acted  on  the  high 
seas  as  a pirate,  if  our  statutes  so  pronounce  him,  cannot  be  in- 
dicted, tried  and  convicted  as  a pirate,  because  he  could  plead,  as 
the  shield  of  his  piracy,  that  he  committed  it  as  part  of  his  treason, 
is,  to  my  apprehension,  entirely  new,  and  inconsistent  with  the  first 
principles  of  justice. 

This  very  statute  of  piracy  is  found  in  a general  crimes  act 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS”  397 


The  first  section  is:  “If  any  person  or  persons  owing  allegiance  to 
the  United  States  of  America  shall  levy  war  against  them,  or  shall 
adhere  to  their  enemies,  giving  them  aid  and  comfort  within  the 
United  States,  or  elsewhere,  and  shall  be  thereof  convicted,”  “such 
person  or  persons  shall  be  adjudged  guilty  of  treason  against  the 
United  States,  and  shall  suffer  death.” 


i6.  Treason  no  defense  against  piracy. 

Now,  you  will  observe  that  treason  is  not  a defense  against 
piracy;  nor  is  good  faith  in  treason  a defense  against  treason,  or  a 
defense  against  piracy.  What  would  be  the  posture  of  these  prison- 
ers, if,  instead  of  being  indicted  for  piracy,  they  were  indicted  for 
treason  ? Should  we  then  hear  anything  about  this  notion  that 
there  was  a war  raging,  and  that  they  were  a party  engaged  in  the 
war  ? Why,  that  is  the  very  definition  of  treason.  Against  whom 
is  the  war?  Against  the  United  States  of  America.  Did  you  owe 
allegiance  to  the  United  States  of  America?  Yes,  the  citizens  did; 
and  I need  not  say  to  you,  gentlemen,  that  those  residents  who  are 
not  citizens  owe  allegiance.  There  is  no  dispute  about'  that. 
Those  foreigners  who  are  living  here  unnaturalized  are  just  as  much 
guilty  of  treason,  if  they  act  treasonably  against  the  government,  as 
any  of  our  own  citizens  can  be.  That  is  the  law  of  England,  the 
law  of  treason,  the  necessary  law  of  civilized  communities.  If  we 
are  hospitable,  if  we  make  no  distinction,  as  we  do  not,  in  this 
country  between  citizens  and  foreigners  resident  here  and  protected 
by  our  laws,  it  is  very  clear  we  cannot  make  any  distinction  when 
we  come  to  the  question  of  who  are  faithful  to  the  laws.  So,  there- 
fore, if  they  were  indicted  for  treason,  what  would  become  of  all 
this  defense  ? It  would  be  simply  a confession  in  open  court  that 
they  were  guilty  of  treason.  Well,  then,  if  they  fell  back  on  the 
proposition:  “We  thought,  in  our  consciences  and  judgments,  that 
either  these  States  had  a right  to  secede,  or  that  they  had  a right 
to  carry  on  a revolution;  that  they  were  oppressed,  and  were  entitled 
to  assert  themselves  against  an  oppressive  government,  and  we,  in 
good  faith,  and  with  a fair  expectation  of  success,  entered  into  it;” 
what  would  become  of  them  ? The  answer  would  be:  “ Good  faith 
in  your  attempt  to  overthrow  the  government  does  not  excuse  you 
from  responsibility  for  the  crime  of  attempting  it.”  Our  statute  is 
made  for  the  purpose  of  protecting  our  government  against  efforts 
made,  in  good  faith  or  in  bad  faith,  for  its  overthrow. 


398 


SPEECH  OF  WILLIAM  M.  EYARTS 


17.  The  authority  of  Vattel  in  harmony  with  the 

PROSECUTION. 

And  now,  in  this  connection,  gentlemen,  as  your  attention,  as 
well  as  that  of  the  court,  has  been  repeatedly  called  to  it,  let  me 
advert  again  to  the  citation  from  that  enlightened  public  writer, 
Vattel,  who  has  done  as  much,  perhaps,  as  our  learned  friends  have 
suggested,  to  place  on  a sure  foundation  the  ameliorations  of  the 
law  of  nations  in  time  of  war,  and  of  their  intercourse  in  time  of 
peace,  as  any  writer  and  thinker  whom  cur  race  has  produced. 
You  remember  that  he  asks:  How  shall  it  be  when  two  contend- 
ing factions  divide  a State  in  all  the  forms  and  extent  of  civil  war; 
what  shall  be  the  right  and  what  the  duty  of  a sovereign  in  this 
regard  ? Shall  he  put  himself  on  the  pride  of  a king,  or  on  the 
flattery  of  a courtier,  and  say,  I am  still  monarch,  and  will  enforce 
against  every  one  of  this  multitude  engaged  in  this  rebellion  the 
strict  penalties  of  my  laws?  Vattel  reasons,  and  reasons  very 
properly:  You  must  submit  to  the  principles  of  humanity  and  of 
justice;  you  must  govern  your  conduct  by  them,  and  not  proceed 
to  an  extermination  of  your  subjects  because  they  have  revolted, 
whether  with  or  without  cause.  You  must  not  enforce  the  sanc- 
tions of  your  government,  or  maintain  its  authority,  on  methods 
which  would  produce  a destruction  of  your  people.  And  you  must 
not  further,  by  insisting,  under  the  enforced  circumstances  which 
surround  you,  on  the  extreme  and  logical  right  of  a king,  furnish 
occasion  for  the  contending  rebels,  who  have  their  moments  of  suc- 
cess and  power  as  well  as  you,  to  retaliate  on  your  loyal  people, 
victims  of  their  struggle  on  your  behalf,  and  thrown  into  the  power 
of  your  rebellious  subjects;  to  retaliate,  I say,  on  them  the  same 
extreme  penalties,  without  right,  without  law,  but  by  mere  power, 
which  you  have  exerted  under  your  claim  of  right. 

And  now,  gentlemen  of  the  jury,  as  the  court  very  well  under- 
stands, this  general  reasoning,  which  should  govern  the  conduct  of 
a sovereign,  or  of  a government,  against  a mere  local  insurrection, 
does  not  touch  the  question  as  to  whether  the  law  of  the  nation  in 
which  the  sovereign  presides,  and  in  violation  of  which  the  crime 
of  the  rebels  has  been  perpetrated,  shall  be  enforced.  There  has 
been,  certainly,  in  modern  times,  no  occasion  when  a sovereign  has 
not  drawn,  in  his  discretion  and  under  the  influence  of  these  prin- 
ciples of  humanity  and  justice,  this  distinction,  and  has  not  inter- 
posed the  shield  of  his  own  mercy  between  the  offenses  of  misled 
and  misguided  masses  of  his  people  and  the  offended  laws.  We 


m THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  399 


know  the  difference  between  law  and  its  condemnation,  and  mercy 
and  its  saving  grace;  and  we  know  that  every  government  exercises 
its  discretion.  And  I should  like  to  know  why  these  learned  coun- 
sel, who  are  seeking  to  interpose,  as  a legal  defense  on  the  part  of 
a criminal,  the  principles  of  policy  and  mercy  which  should  guide 
the  government,  are  disposed  to  insist  that  this  government,  in  its 
prosecutions  and  its  trials,  has  shown  a disposition  to  absolve  great 
masses  of  criminals  from  the  penalties  of  its  laws  ? I should  like 
to  know,  when  my  learned  friend  Mr.  Brady,  near  the  close  of  his 
remarks,  suggested  that  there  had  been  no  trial  for  treason,  whether 
this  government,  from  the  first  steps  in  the  outbreak  down  to  the 
final  and  extensive  rage  of  the  war,  has  not  foreborne  to  take  satis- 
faction for  the  wrongs  committed  against  it,  and  has  not  been  dis- 
posed to  carry  on  and  sustain  the  strength  of  the  government  with- 
out bloody  sacrifices  for  its  maintenance  and  for  the  offended 
justice  of  the  land  ? But  it  is  certainly  very  strange  if,  when  a gov- 
ernment influenced  by  those  principles  of  humanity  of  which  Vattel 
speaks,  and  which  my  learned  friends  so  much  insist  upon,  has 
foreborne,  except  in  signal  instances,  or,  if  you  please,  in  single  in- 
stances that  are  not  signal,  to  assert  the  standard  of  the  law’s  au- 
thority and  of  the  government’s  right,  that  it  may  be  seen  that  the 
sword  of  justice,  although  kept  sheathed  for  the  most  part,  has  yet  not 
rusted  in  its  scabbard,  and  that  the  government  is  not  faithless  to 
itself,  or  to  its  laws,  its  powers  or  its  duties,  in  these  particular 
prosecutions  that  have  been  carried,  one  to  its  conclusion,  in  Phila- 
delphia, and  the  other  to  this  stage  of  its  progress,  here;  it  is 
strange,  indeed,  that  the  appeal  is  to  be  thrust  upon  it:  “ Do  not 
include  the  masses  of  the  misguided  men!  ” and  when  it  yields  so 
mercifully  to  that  appeal  and  says,  “ I will  limit  myself  to  the  least 
maintenance  and  assertion  of  a right,”  that  the  answer  is  to  come 
back:  “ Why,  how  execrable,  how  abominable,  to  make  distinctions 
of  that  kind!  ” 

But,  gentlemen,  the  mercy  of  the  government,  as  I have  said  to 
you,  remains  after  conviction,  as  well  as  in  its  determination  not 
to  press  numerous  trials  for  treason;  but  it  is  an  attribute,  both  in 
forbearing  to  try  and  in  forbearing  to  execute,  which  is  safely  left 
where  the  precedents  that  are  to  shape  the  authority  of  law  cannot 
be  urged  against  its  exercise.  Now,  I look  upon  the  conduct  and 
duty  of  the  government  on  somewhat  larger  considerations  than 
have  been  pressed  before  you  here.  The  government,  it  is  said, 
does  not  desire  the  conviction  of  these  men,  or,  at  least,  should  not 


400 


SPEECH  OF  WILLIAM  M.  EVARTS 


desire  it.  The  government  does  not  desire  the  blood  of  any  of  its 
misguided  people.  The  government — the  prosecution — should  have 
no  passion,  no  animosities,  in  this  or  in  any  other  case;  and  our 
learned  friends  have  done  us  the  favor  to  say  that  the  case  is  pre- 
sented to  you  as  the  law  should  require  it  to  be;  that  you,  and  all, 
are  unaffected  and  unimpeded  in  your  judgment;  and  that,  with  a 
full  hearing  of  what  could  be  said  on  the  part  of  these  criminals, 
you  have  the  case  candidly  and  openly  before  you. 

i8.  Duty  of  government  to  protect  its  commerce  and 

ITS  CITIZENS. 

Now,  gentlemen,  the  government,  although  having  a large  meas- 
ure of  discretion,  has  no  right,  in  a country  where  the  government 
is  one  wholly  of  law,  to  repeal  the  criminal  law,  and  no  right  to 
leave  it  without  presenting  it  to  the  observation,  the  understanding, 
and  the  recognition  of  all  its  citizens,  whether  in  rebellion  or  not, 
in  its  majesty,  in  its  might,  and  in  its  impartiality.  The  govern- 
ment has  behind  it  the  people,  and  it  has  behind  it  all  the  great 
forces  which  are  breathing  on  our  agitated  society,  all  the  strong 
passions,  all  the  deep  emotions,  all  the  powerful  convictions,  which 
impress  the  loyal  people  of  this  country  as  to  the  outrage,  as  to  the 
wickedness,  as  to  the  perils  of  this  great  rebellion.  Do  you  not 
recollect  how,  when  the  proclamation  of  Mr.  Davis  invited  maraud- 
ers to  prey  upon  our  commerce,  from  whatever  quarter  and  from 
whatever  motives  (patriotism  and  duty  not  being  requisite  before 
they  would  be  received),  the  cry  of  the  wounded  sensibilities  of  a 
great  commercial  people  burst  upon  this  whole  scene  of  conflict  ? 
What  was  there  that  as  a nation  we  had  more  to  be  proud  of,  more 
to  be  glad  for  in  our  history,  than  our  flag?  To  think  that  in  an 
early  stage  of  what  was  claimed  to  be  first  a constitutional,  and 
then  a peaceful,  and  then  a deliberate  political  agitation  and  main- 
tenance of  right,  this  last  extreme  act,  the  arming  of  private  per- 
sons against  private  property  on  the  sea,  was  appealed  to  before 
even  a force  was  drawn  on  the  field  on  behalf  of  the  United  States 
of  America!  The  proclamation  of  the  President  was  but  two  days 
old  when  privateers  were  invited  to  rush  to  the  standard.  The  in- 
dignation of  the  community,  the  sense  of  outrage  and  hatred  was 
so  severe  and  so  strong,  that  at  that  time,  if  the  sentiment  of  the 
people  had  been  consulted,  it  would  have  found  a true  expression 
in  what  was  asserted  in  the  newspapers,  in  public  speeches,  in  pri- 
vate conversations:  that  the  duty  of  every  merchantman  and  of 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  401 


every  armed  vessel  of  the  country,  which  arrested  any  of  these  so- 
called  privateers,  under  this  new  commission,  without  a nation  and 
without  authority,  was  to  treat  them  as  pirates  caught  in  the  act, 
and  execute  them  at  the  yard-arm  by  a summary  justice. 

Well,  I need  not  say  to  you,  gentlemen,  that  I am  sure  you  and 
I and  all  of  us  would  have  had  occasion  to  regret,  in  every  sense, 
as  wrong,  as  violent,  as  unnecessary,  and,  therefore,  as  wholly  un- 
justifiable, on  the  part  of  a powerful  nation  like  ourselves,  any  such 
rash  execution  of  the  penalties  of  the  law  of  nations,  and  of  the 
law  of  the  land,  while  our  government  had  power  on  the  sea,  had 
authority  on  the  land,  had  courts  and  laws  and  juries  under  its  au- 
thority, to  inquire  and  look  into  the  transaction. 

The  public  passions  on  this  subject  being  all  cool  at  this  time, 
after  an  interval  of  four  months  or  more  from  the  arrest,  we  are 
here  trying  this  case.  Yet  my  learned  friends  can  find  complaint 
against  the  mercy  of  the  government  and  its  justice,  that  it  brings 
any  prosecution;  and  great  complaint  is  made  before  you,  without 
the  least  ground  or  cause  as  it  seems  to  me,  that  the  prosecution  is 
pressed  in  a time  of  war,  when  the  sentiments  of  the  community 
are  supposed  to  be  inflamed. 

Well,  gentlemen,  what  is  the  duty  of  government,  when  it  has 
brought  in  prisoners  arrested  on  the  high  seas,  but  to  deliver 
them  promptly  to  the  civil  authorities,  as  was  done  in  this  case; 
and  then,  in  the  language  of  the  Constitution,  which  secures  the 
right  to  them,  to  give  them  a speedy  and  impartial  trial  ? That  it 
is  impartial  they  all  confess.  How  speedy  is  it  ? They  say  they 
regret  that  it  proceeds  in  time  of  war.  Surely,  our  learned  friends 
do  not  wish  to  be  understood  as  having  had  denied  to  them  in  this 
court  any  application  which  they  have  made  for  postponement. 
The  promptness  of  the  judicial  and  prosecuting  authorities  here 
had  produced  this  indictment  in  the  month  of  June,  I believe  the 
very  month  in  which  the  prisoners  were  arrested,  or  certainly  early 
in  July;  and  then  the  government  was  ready  to  proceed  with  the 
trial,  so  far  as  I am  advised.  But,  at  any  rate,  an  application — a 
very  proper  and  necessary  application — was  made  by  our  learned 
friends,  that  the  trial  should  be  postponed  till,  I believe,  the  very 
day  on  which  it  was  brought  on.  That  application  was  not  ob- 
jected to,  was  acquiesced  in,  and  the  time  was  fixed,  and  no  further 
suggestion  was  made  that  the  prisoners  desired  further  delay;  and 
if  the  government  had  undertaken  to  ask  for  further  delay,  on  the 
ground  of  being  unprepared,  there  was  no  fact  to  sustain  any  such 


402 


SPEECH  OF  WILLIAM  M.  EVARTS 


application.  If  it  was  the  wish  of  the  prisoners,  or  for  their  con- 
venience, that  there  should  be  further  delay,  it  was  for  them  to 
suggest  it.  But,  being  entitled  by  the  Constitution  to  a speedy  as 
well  as  an  impartial  trial,  and  the  day  being  fixed  by  themselves  on 
which  they  would  be  ready,  and  they  being  considered  ready,  and 
no  difficulty  or  embarrassment  in  the  way  of  proof  having  been 
suggested  on  the  part  of  the  government,  it  seems  to  me  very 
strange  that  this  regret  should  be  expressed,  unless  it  should  take 
that  form  of  regret  which  all  of  us  participate  in,  that  the  war  is 
not  over.  That,  I agree,  is  a subject  of  regret.  But  how  there 
has  ever  been  any  pressure,  or  any — the  least — exercise  of  author- 
ity adverse  to  their  wishes  in  this  matter,  it  is  very  difficult  for  me 
to  understand. 

19.  The  novel  political  questions  presented  by  the 

DEFENSE. 

Now,  gentlemen,  I approach  a part  of  this  discussion  which  I 
confess  I would  gladly  decline.  I have  not  the  least  objection — no 
one,  I am  sure,  can  feel  the  least  objection — to  the  privilege  or 
supposed  duty  of  counsel  who  are  defending  prisoners  on  a grave 
charge — certainly  not  in  a case  which  includes,  as  a possible  result, 
the  penalty  of  their  clients'  lives,  to  go  into  all  the  inquiries,  dis- 
cussions and  arguments,  however  extensive,  varied,  or  remote,  that 
can  affect  the  judgment  of  the  jury,  properly  or  fairly,  or  that  can 
rightly  be  invoked.  But  I confess  that,  looking  at  the  very  inter- 
esting, able,  extensive  and  numerous  arguments,  theories  and  illus- 
trations that  have  been  presented  in  succession  by,  I think,  in  one 
form  or  another,  seven  counsel  for  these  prisoners,  as  the  introduc- 
tion into  a judicial  forum,  and  before  a jury,  of  inquiries  concern- 
ing the  theories  of  government,  the  course  of  politics,  the  occasion 
of  strife  on  one  side  or  the  other,  within  the  region  of  politics  and 
the  region  of  peace,  in  any  portion  of  the  great  communities  that 
composed  this  powerful  nation;  in  that  point  of  view,  I aver,  they 
seem  to  me  very  little  inviting  and  instructive,  as  they  certainly  are 
extremely  unusual  in  forensic  discussions.  Certainly,  gentlemen  of 
the  jury,  we  must  conceive  some  starting  point  somewhere  in  the 
stability  of  human  affairs,  as  they  are  intrusted  to  the  control  and 
defense  of  human  governments.  But  in  the  very  persistent  and 
resolute  views  of  the  learned  counsel  upon  this  point:  first,  on  the 
right  of  secession  as  constitutional;  second,  if  not  constitutional, 
as  being  supposed  by  somebody  to  be  constitutional;  third,  on  the 


IN  TEE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  403 


right  of  revolution  as  existing  on  the  part  of  a people  oppressed,, 
or  deeming  themselves  oppressed,  to  try  their  strength  in  the  over- 
throw of  the  subsisting  government;  fourth,  on  the  right  to  press  the 
discontents  inside  of  civil  war;  and  then  finally  and  at  last,  that 
whoever  thinks  the  government  oppresses  him,  or  thinks  that  a 
better  government  would  suit  his  case,  has  not  only  the  right  to  try 
the  venture,  but  that,  unsuccessful,  or  at  any  stage  of  the  effort, 
his  right  becomes  so  complete  that  the  government  must  and  should 
surrender  at  once  and  to  every  attempt:  I see  only  what  is  equiva- 
lent to  subversion  of  government,  and  to  saying  that  the  right  of 
revolution,  in  substance  and  in  fact,  involves  the  right  of  govern- 
ment in  the  first  place,  and  its  duty  in  the  second  place,  to  sur- 
render to  the  revolutionist,  and  to  treat  him  as  having  overthrown 
it  in  point  of  law  and  in  contemplation  of  its  duty.  That  is  a 
proposition  which  I cannot  understand. 

Nevertheless,  gentlemen,  these  subjects  have  been  so  extensively 
opened,  and  in  so  many  points  attacks  have  been  made  upon  what 
seems  to  me  not  only  the  very  vital  structure  and  necessary  support 
of  this,  our  government,  but  the  very  necessary  and  indispensable 
support  of  any  government  whatever,  and  we  have  been  so  dis- 
tinctly challenged,  both  on  the  ground  of  an  absolute  right  to  over- 
throw this  government  whenever  any  State  thinks  fit;  and,  next, 
upon  the  clear  right,  on  general  principles  of  human  equity,  of  each 
State  to  raise  itself  against  any  government  with  which  it  is  dis- 
satisfied; and  upon  the  general  right  of  conscience,  as  well  as  on 
the  complete  support  by  what  has  been  assumed  to  have  been  the 
parallel  case,  on  all  those  principles,  of  the  conduct  of  the  colonies 
which  became  the  United  States  of  America  and  established  our 
government — that  I shall  find  it  necessary,  in  the  discharge  of  my 
duty,  to  say  something,  however  briefly,  on  that  subject. 

Now,  gentlemen,  these  are  novel  discussions  in  a court  of  jus- 
tice within  the  United  States  of  America.  We  have  talked  about 
the  oppressions  of  other  nations,  and  rejoiced  in  our  exemption 
from  all  of  them,  under  the  free  and  benignant  and  powerful  gov- 
ernment which  was,  by  the  favor  of  Providence,  established  by 
the  wisdom  and  courage  and  virtue  of  our  ancestors.  We  had,  for 
more  than  two  generations,  reposed  under  the  shadow  of  our  all- 
protecting  government  with  the  same  conscious  security  as  under 
the  firmament  of  the  heavens.  We  knew,  to  be  sure,  that  for  all 
that  made  life  hopeful  and  valuable,  for  all  that  made  life  possible, 
we  depended  upon  the  all-protecting  power  and  the  continued 


404: 


SPEECH  OF  WILLIAM  M.  EVARTS 


favor  of  Divine  Providence.  We  knew  just  as  well,  that  without 
civil  society,  without  equal  and  benignant  laws,  without  the  admin- 
istration of  justice,  without  the  maintenance  of  commerce,  without 
a suitable  government,  without  a powerful  nationality,  all  the  mo- 
tives and  springs  of  human  exertion  and  labor  would  be  dried  up 
at  their  source.  But  we  felt  no  more  secure  in  the  Divine  promise 
that  “summer  and  winter,  seed-time  and  harvest,”  should  not 
cease,  than  we  did  in  the  permanent  endurance  of  that  great  fabric 
established  by  the  wisdom  and  the  courage  of  a renowned  ancestry, 
to  be  the  habitation  of  liberty  and  justice  for  us  and  our  children 
to  every  generation.  We  felt  no  solicitude  whatever  that  this  great 
structure  of  our  constituted  liberties  should  pass  away  as  a scroll, 
or  its  firm  power  crumble  in  the  dust.  But,  by  the  actual  circum- 
stances of  our  situation,  and,  if  not  by  them,  certainly  by  the  de- 
structive theories  which  are  presented  for  your  consideration,  it 
becomes  necessary  for  us  as  citizens,  and,  in  the  judgment  at  least 
of  the  learned  counsel  for  these  prisoners,  for  you,  and  for  this 
learned  court,  in  the  conduct  of  this  trial  and  in  the  disposition  of 
the  issue  of  “ guilty  ” or  “ not  guilty  ” as  to  these  prisoners,  to  pay 
some  attention  to  these  considerations.  If,  in  the  order  of  this 
discussion,  gentlemen,  I should  not  seem  to  follow  in  any  degree, 
or  even  to  include  by  name,  many  of  the  propositions,  of  the  dis- 
tinctions, and  of  the  arguments  which  our  learned  friends  have 
pressed  against  the  whole  solidity,  the  wholeccharacter,  the  whole 
permanence,  the  whole  strength  of  our  government,  I yet  think 
you  will  find  that  I have  included  the  principal  ideas  they  have 
advanced,  and  have  commented  upon  the  views  that  seem  to  us, 
at  least  so  far  as  we  think  them  to  be  at  all  connected  with  this  case, 
suitable  to  be  considered. 

Here  Mr.  Evarts  discussed  the  right  of  secession,  showing  that  such  a doc- 
trine as  contended  for  by  the  defense  was  utterly  antagonistic  with  the  theory  of 
the  American  revolution  out  of  which  the  nation  was  born,  and  that  it  was  only 
upon  the  idea  of  unity  that  the  people  of  the  colonies  succeeded.  He  then  pro- 
ceeded to  discuss  the  right  of  revolution  as  follows  : 

20.  The  right  of  revolution. 

And  now,  gentlemen,  having  done  with  this  doctrine  of  seces- 
sion, as  utterly  inconsistent  with  the  theory  of  our  government,  and 
utterly  unimportant  as  a practical  right  for  any  supposable  or  even 
imaginable  case  that  may  be  suggested,  I come  to  consider  the 
question  of  the  right  of  revolution.  I have  shown  to  you  upon 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  405 


what  principles  and  upon  what  substantial  question,  between  being 
subjects  as  slaves  or  being  participants  in  the  British  government, 
our  colonies  attempted  and  achieved  their  independence.  As  I 
have  said  to  you,  a very  brief  experience  showed  that  they  needed, 
to  meet  the  exigencies  of  their  situation,  the  establishment  of  a 
government  that  should  be  in  accordance  with  the  wishes  and 
spirit  of  the  people  in  regard  of  freedom,  and  yet  should  be  of 
such  strength  and  such  unity  as  would  admit  of  prosperity  being 
enjoyed  under  it,  and  of  its  name  and  power  being  established 
among  the  nations  of  the  earth. 

Without  going  into  the  theories  of  government  and  of  the 
rights  of  the  people,  and  of  the  rights  of  the  rulers,  to  any  great 
extent,  we  all  know  that  there  has  been  every  variety  of  experiment 
tried,  in  the  course  of  human  affairs,  between  the  great  extreme 
alluded  to  by  my  learned  friend  (Mr.  Brady),  of  the  slavery  of 
Egyptians  to  their  king— the  extreme  instance  of  an  entire  popula- 
tion scarcely  lifted  above  the  brutes  in  their  absolute  subjection  to 
the  tyranny  of  a ruler,  so  that  the  life  and  the  soul,  and  the  sweat 
and  the  blood  of  a whole  generation  of  men  are  consumed  in  the 
task  of  building  a mausoleum  as  the  grave  of  a king — and  the  later 
efforts  of  our  race,  culminating  in  the  happy  success  of  our  own 
form  of  government,  to  establish,  on  foundations  where  liberty  and 
law  find  equal  support,  the  principle  of  government,  that  govern- 
ment is  by,  and  for,  and  from  all  the  people;  that  the  rulers,  in- 
stead of  being  their  masters  and  their  owners,  are  their  agents  and 
their  servants;  and  that  the  greatest  good  of  the  greatest  number 
is  the  plain,  practical  and  equal  rule  which,  by  gift  from  our  Crea- 
tor, we  enjoy. 

21.  The  problem  of  self-government. 

Now  this,  you  will  observe,  is  a question  which  readily  receives 
our  acceptance.  But  the  great  problem  in  reference  to  the  freedom 
of  a people,  in  the  establishment  of  their  government,  presents  it- 
self in  this  wise:  The  people,  in  order  to  maintain  their  freedom, 
must  be  masters  of  their  government,  so  that  the  government  may 
not  be  too  strong,  in  its  arrangement  of  power,  to  overmaster  the 
people;  but  yet  the  government  must  be  strong  enough  to  maintain 
and  protect  the  independence  of  the  nation  against  the  aggressions, 
the  usurpations  and  the  oppressions  of  foreign  nations.  Here  you 
have  a difficulty  raised  at  once.  You  expose  either  the  freedom  of 
the  nation  by  making  the  government  too  strong  for  the  preserva- 


406 


SPEECH  OF  WILLIAM  M.  EYARTS 


tion  of  individual  independence,  or  you  expose  its  existence  by 
making  it  too  weak  to  maintain  itself  against  the  passions,  interests 
and  power  of  neighboring  nations.  If  you  have  a large  nation, 
counting  its  population  by  many  millions  and  the  circumference  of 
its  territory  by  thousands  of  miles,  how  can  you  arrange  the 
strength  of  government,  so  that  it  shall  not,  in  the  interests  of 
human  passions,  grow  too  strong  for  the  liberties  of  the  people  ? 
And  if,  abandoning  in  despair  that  effort  and  that  hope,  you  cir- 
cumscribe the  limits  of  your  territory  and  reduce  your  population 
within  a narrow  range,  how  can  you  have  a government  and  a na- 
tion strong  enough  to  maintain  itself  in  the  contests  of  the  great 
family  of  nations,  impelled  and  urged  by  interests  and  passions  ? 

22.  Practical  object  and  spirit  of  government. 

Here  is  the  first  peril  which  has  never  been  successfully  met  and 
disposed  of  in  any  of  the  forms  of  government  that  have  been 
known  in  the  history  of  mankind,  until,  at  least,  our  solution  of  it 
was  attempted,  and  unless  it  has  succeeded  and  can  maintain  itself. 
But,  again,  this  business  of  self-government  by  a people  has  but 
one  practical  and  sensible  spirit  and  object.  The  object  of  free 
government  is,  that  the  people,  as  individuals,  may  with  security 
pursue  their  own  happiness.  We  do  not  tolerate  the  theory  that 
all  the  people  constituting  the  nation  are  absorbed  into  the  national 
growth  and  life.  The  reason  why  we  want  a free  government  is, 
that  we  may  be  happy  under  it,  and  pursue  our  own  activities  ac- 
cording to  our  nature  and  our  faculties.  But  you  will  see  at  once 
that  it  is  of  the  essence  of  being  able  to  pursue  our  own  interests 
under  the  government  under  which  we  live,  that  we  can  do  so  ac- 
cording to  our  own  notions  of  what  they  are,  or  the  notions  of  those 
who  are  intelligently  informed  of,  participate  in,  and  sympathize 
with  those  interests.  Therefore  it  seems  necessary  that  all  of  the 
every-day  rights  of  property,  of  social  arrangements,  of  marriage,  of 
contracts — everything  that  makes  up  the  life  of  a social  community 
— shall  be  under  the  control,  not  of  a remote  or  distant  authority, 
but  of  one  that  is  limited  to  and  derives  its  ideas  and  principles 
from  a local  community. 

Now,  how  can  this  be  in  a large  nation,  in  a nation  of  thirty 
millions,  distributed  over  a zone  of  the  earth  ? How  are  we  to  get 
along  in  New  York,  and  how  are  others  to  get  along  in  South 
Carolina,  and  others  in  New  England,  in  the  every-day  arrange- 
ments that  proceed  from  government  and  affect  the  prosperity,  the 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS.”  407 

freedom,  the  independence,  the  satisfaction  of  the  community  with 
the  condition  in  which  it  lives  ? How  can  we  get  along  if  all  these 
minute  and  every-day  arrangements  are  to  proceed  from  a govern- 
ment which  has  to  deal  with  the  diverse  opinions,  the  diverse  senti- 
ments, the  diverse  interests  of  so  extensive  a nation  ? But  if,  flee- 
ing from  this  peril,  you  say  that  you  may  reduce  your  nation,  you 
fall  into  another  difficulty.  The  advanced  civilization  of  the  pres- 
ent day  requires  for  our  commercial  activity,  for  our  enjoyment  of 
the  comforts  and  luxuries  of  life,  that  the  whole  globe  shall  be  ran- 
sacked, and  that  the  power  of  the  nation  which  we  recognize  as 
our  superior  shall  be  able  to  protect  our  citizens  in  their  enter- 
prises, in  their  activities,  in  their  objects  all  over  the  world.  How 
can  a little  nation,  made  up  of  Massachusetts,  or  made  up  of  South 
Carolina,  have  a flag  and  a power  which  can  protect  its  commerce 
in  the  East  Indies  and  in  the  southern  ocean  ? Again,  we  find  that 
nations,  unless  they  are  separated  by  wide  barriers,  necessarily,  in 
the  course  of  human  affairs,  come  into  collision;  and,  as  I have 
shown  to  you,  the  only  arbitrament  for  their  settlement  is  war. 
But  war  is  a scourge,  an  unmitigated  scourge,  so  long  as  it  lasts, 
and  in  itself  considered.  But  for  objects  which  make  it  meritorious 
and  useful,  it  is  a scourge  never  to  be  tolerated.  It  puts  in  abey- 
ance all  individual  rights,  interests  and  schemes,  until  the  great  con- 
troversy is  settled. 

23.  Political  results  of  war. 

If,  then,  we  are  a small  nation,  surrounded  on  all  sides  by  other 
nations,  with  no  natural  barriers,  with  competing  interests,  with  oc- 
casions of  strife  and  collision  on  all  sides,  how  can  we  escape  war, 
as  a necessary  result  of  that  miserable  situation  ? But  war  strength- 
ens the  power  of  government,  weakens  the  power  of  the  individual, 
and  establishes  maxims  and  creates  forces  that  go  to  increase  the 
weight  and  the  power  of  government,  and  to  weaken  the  rights  of 
the  people.  Then  .we  see  that,  to  escape  war,  we  must  either  estab- 
lish a great  nation  which  occupies  an  extent  of  territory  and  has  a 
fund  of  power  sufficient  to  protect  itself  against  border  strifes  and 
against  the  ambition,  the  envy,  the  hatred  of  neighbors;  or  else  one 
which,  being  small,  is  exposed  to  war  from  abroad  to  subjugate  it, 
or  to  the  greater  peril  to  its  own  liberties,  of  war  made  by  its  own 
government,  thus  establishing  principles  and  introducing  interests 
which  are  inconsistent  with  liberty. 

I have  thus  ventured,  gentlemen,  to  lay  before  you  some  of  these 


408 


SPEECH  OF  WILLIAM  M.  EVARTS 


general  principles,  because,  in  the  course  of  the  arguments  of  my 
learned  friends  as  well  as  in  many  of  the  discussions  before  the 
public  mind,  it  seems  to  be  considered  that  the  ties,  the  affections 
and  the  interests  which  oblige  us  to  the  maintenance  of  this  gov- 
ernment of  ours,  find  their  support  and  proper  strength  and  nour- 
ishment only  in  the  sentiments  of  patriotism  and  duty,  because  it 
happens  to  be  our  own  government;  and  that,  when  the  considera- 
tions of  force  or  of  feeling  which  bring  a people  to  submit  to  a 
surrender  of  their  government,  or  to  a successful  conquest  of  a 
part  of  their  territory,  or  to  a wresting  of  a part  of  their  people 
from  the  control  of  the  government,  shall  be  brought  to  bear  upon 
us,  we  shall  be,  in  our  loss  and  our  surrender,  only  suffering  what 
other  nations  have  been  called  upon  to  lose  and  to  surrender,  and 
that  it  will  be  but  a change  in  the  actual  condition  of  the  country 
and  its  territory. 

24.  Wisdom  and  advantages  of  our  political  system. 

But  you  will  perceive  that,  by  the  superior  fortune  which  at- 
tended our  introduction  into  the  family  of  nations,  and  by  the 
great  wisdom,  forecast  and  courage  of  our  ancestors,  we  avoided, 
at  the  outset,  all  the  difficulties  between  a large  territory  and  a 
numerous  population  on  the  one  hand,  and  a small  territory  and  a 
reduced  population  on  the  other  hand,  and  all  those  opposing 
dangers  of  the  government  being  either  too  weak  to  protect  the 
nation,  or  too  strong  and  thus  oppressive  of  the  people,  by  a dis- 
tribution of  powers  and  authorities,  novel  in  the  affairs  of  men, 
dependent  on  experiment,  and  to  receive  its  final  fate  as  the  result 
of  that  experiment.  We  went  on  this  view,  that  these  feeble  col- 
onies had  not,  each  in  itself,  the  life  and  strength  of  a nation;  and 
yet  these  feeble  colonies  and  their  poor  and  sparse  population  were 
nourished  on  a love  of  liberty  and  self-government.  These  senti- 
ments had  carried  them  through  a successful  war  against  one  of 
the  great  powers  of  the  earth.  They  were  not  to  surrender  that 
for  which  they  had  been  fighting  to  any  scheme,  to  any  theory  of  a 
great,  consolidated  nation,  the  government  of  which  should  subdue 
the  people  and  re-introduce  the  old  fashion  in  human  affairs:  that 
the  people  were  made  for  the  rulers,  and  not  the  rulers  by  and  for 
the  people.  They  undertook  to  meet,  they  did  meet,  this  difficult 
dilemma  in  the  constitution  of  government,  by  separating  the  great 
fund  of  power  and  reposing  it  in  two  distinct  organizations.  They 
reserved  to  the  local  communities  the  control  of  iheir  domestic 


IN  THE  CASE  OF  THE  « SAVANNAH  PRIVATEERS.”  409 


affairs,  and  attributed  the  maintenance  and  preservation  of  them  to 
the  State  governments.  They  undertook  to  collect  and  deposit, 
under  the  form  of  a written  Constitution,  with  the  general  govern- 
ment all  those  larger  and  common  interests  which  enter  into  the 
conception  and  practical  establishment  of  a distinct  nation  among 
the  nations  of  the  earth,  and  determined  that  they  would  have  a 
central  power  which  should  be  adequate,  by  drawing  its  resources 
from  the  patriotism,  from  the  duty,  from  the  wealth,  from  the  num- 
bers of  a great  nation,  to  represent  them  in  peace  and  in  war;  a 
nation  that  could  protect  the  interests,  encourage  the  activities  and 
maintain  the  development  of  its  people,  in  spite  of  the  opposing 
interests  or  the  envious  or  hostile  attacks  of  any  nation.  They  de- 
termined that  this  great  government,  thus  furnished  with  this  range 
of  authority  and  this  extent  of  power,  should  not  have  anything  to 
do  with  the  every-day  institutions,  operations  and  social  arrange- 
ments of  the  community  into  which  the  vast  population  and  terri- 
tory of  the  nation  were  distributed.  They  determined  that  the 
people  of  Massachusetts,  the  people  of  New  York,  and  the  people 
of  South  Carolina,  each  of  them,  should  have  their  own  laws  about 
agriculture,  about  internal  trade,  about  marriage,  about  apprentice- 
ship, about  slavery,  about  religion,  about  schools,  about  all  the 
every-day  pulsations  of  individual  life  and  happiness,  controlled  by 
communities  that  moved  with  the  same  pulsations,  obeyed  the  same 
instincts,  and  were  animated  by  the  same  purposes.  And,  as  this 
latter  class  of  authority  contains  in  itself  the  principal  means  of 
oppression  by  a government,  and  is  the  principal  point  where  op- 
pression is  to  be  feared  by  a people,  they  had  thus  robbed  the  new 
system  of  all  the  dangers  which  attend  the  too  extensive  powers  of 
a government.  They  divided  the  fund  of  power  to  prevent  a great 
concentration  and  a great  consolidation  of  the  army  of  magistrates 
and  officers  of  the  law  and  of  the  government,  which  would  have 
been  combined  by  an  united  and  consolidated  authority,  having 
jurisdiction  of  all  the  purposes  of  government,  of  all  the  interests 
of  citizens,  and  of  the  entire  population  and  entire  territory  in  these 
respects.  They  thus  made  a government,  complex  in  its  arrange- 
ments, which  met  those  opposing  difficulties,  inherent  in  human 
affairs,  that  make  the  distinction  between  free  governments  and 
oppressive  governments.  They  preserved  the  people  in  their  en- 
joyment and  control  of  all  the  local  matters  entering  into  their 
every-day  life,  and  yet  gave  them  an  establishment,  springing  from 
the  same  interests  and  controlled  by  the  same  people,  which  has 


4:10 


SPEECH  OF  WILLIAM  M.  EVARTS 


sustained  and  protected  us  in  our  relations  to  the  family  of  nations 
on  the  high  seas  and  in  the  remote  corners  of  the  world. 

25.  The  right  of  secession  inconsistent  with  our 

INSTITUTIONS. 

Now,  this  is  the  scheme  and  this  is  the  purpose  with  which  this 
government  was  formed;  and  you  will  observe  that  there  is  con- 
tained in  it  this  separation  and  this  distribution.  And  our  learned 
friends,  who  have  argued  before  you  respecting  this  theory  and 
this  arrangement  and  practice  of  the  power  of  a government  as  in- 
consistent with  the  interests  and  the  freedom  of  the  people,  have 
substantially  said  to  you  that  it  was  a whimsical  contrivance,  that 
it  was  an  impossible  arrangement  of  inconsistent  principles,  and 
that  we  must  go  back  to  a simple  government  composed  of  one  of 
the  States,  or  of  a similar  arrangement  of  territory  and  people, 
which  would  make  each  of  us  a weak  and  contemptible  power  in 
the  family  of  nations;  or  we  must  go  back  to  the  old  consolidation 
of  power,  such  as  is  represented  by  the  frame  of  France  or  England 
in  its  government,  or,  more  distinctly,  more  absolutely,  and  more 
likely  to  be  the  case,  for  so  vast  a territory  and  so  extensive  a pop- 
ulation as  ours,  to  the  simple  notion  of  Russian  autocracy. 

That,  then,  being  the  object,  and  that  the  character  of  our  in- 
stitutions, and  this  right  of  secession  not  being  provided  for,  or 
imagined,  or  tolerated  in  the  scheme,  let  us  look  at  the  right  of 
revolution  as  justifying  an  attempt  to  overthrow  the  government; 
and  let  us  look  at  the  occasions  of  revolution  which  are  pre- 
tended here  as  giving  a support  before  the  world,  in  the  forum  of 
conscience,  and  in  the  judgment  of  mankind,  for  the  exercise  of 
that  right. 

And  first  let  me  ask  you  whether,  in  all  the  citations  from  the 
great  men  of  the  revolution,  and  in  the  later  stages  of  our  history, 
any  opinion  has  been  cited  which  has  condemned  this  scheme  as 
unsuitable  and  insufficient  for  the  freedom  and  happiness  of  the 
people,  if  it  can  be  successful  ? I think  not.  The  whole  history 
of  the  country  is  full  of  records  of  the  approval,  of  the  support, 
of  the  admiration,  of  the  reverent  language  which  our  people  at 
large  and  the  great  leaders  of  public  opinion,  the  great  statesmen 
of  the  country,  have  spoken  of  this  system  of  government.  Let 
me  ask  your  attention  to  but  two  encomiums  upon  it,  as  repre- 
sented by  that  central  idea  of  a great  nation,  and  yet  a divided 
and  local  administration  of  popular  interests,  to  wit,  one  in  the  first 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS”  411 


Stage  of  its  adoption,  before  its  ratification  by  the  people  was  com- 
plete; and  the  other,  a speech  made  at  the  very  eve  of,  if  not  in 
the  very  smoke  of,  this  hostile  dissolution  of  it. 

26.  Views  of  William  Pinkney  on  the  perfection  of  our 

GOVERNMENT. 

Mr.  Pinkney,  of  South  Carolina,  who  had  been  one  of  the 
delegates  from  the  State  in  the  national  convention,  and  had  co- 
operated with  the  northern  statesmen,  and  with  the  great  men  of 
Virginia,  in  forming  the  government  as  it  was,  in  urging  on  the 
convention  of  South  Carolina  the  adoption  of  the  Constitution  and 
its  ratification,  said: 

“ To  the  Union  we  will  look  up  as  the  temple  of  our  freedom — 
a temple  founded  in  the  affections  and  supported  by  the  virtue  of 
the  people.  Here  we  will  pour  out  our  gratitude  to  the  Author  of 
all  good,  for  suffering  us  to  participate  in  the  rights  of  a people 
who  govern  themselves.  Is  there,  at  this  moment,  a nation  on  the 
earth  which  enjoys  this  right,  where  the  true  principles  of  repre- 
sentation are  understood  and  practiced,  and  where  all  authority 
flows  from  and  returns,  at  stated  periods,  to  the  people  ? I answer, 
there  is  not.  Can  a government  be  said  to  be  free  where  those  do 
not  exist  ? It  cannot.  On  what  depends  the  enjoyment  of  those 
rare,  inestimable  rights  ? On  the  firmness  and  on  the  power  of  the 
Union  to  protect  and  defend  them.”- 

Had  we  anything  from  that  great  patriot  and  statesman  of 
this  right  of  secession,  or  independence  of  a State,  as  an  important 
or  a useful  element  in  securing  these  rare,  these  unheard  of,  these 
inestimable  privileges  of  government,  which  the  author  of  all  good 
had  suffered  the  people  of  South  Carolina  to  participate  in  ? No; 
they  depended  ‘‘on  the  firmness  and  the  power  of  the  Union  to 
protect  and  defend  them.”  Mr.  Pinkney  goes  on  to  say: 

“To  the  philosophic  mind,  how  new  and  awful  an  instance  do 
the  United  States  at  present  exhibit  to  the  people  of  the  world  ? 
They  exhibit,  sir,  the  first  instance  of  a people  who,  being  thus 
dissatisfied  with  their  government,  unattacked  by  a foreign  force 
and  undisturbed  by  domestic  uneasiness,  coolly  and  deliberately 
resort  to  the  virtue  and  good  sense  of  the  country  for  a correction 
of  their  public  errors.” 

That  is,  for  the  abandonment  of  the  weakness  and  the  danger 
of  the  imperfect  confederation,  and  the  adoption  of  the  constitu- 
tional and  formal  establishment  of  federal  power.  Mr.  Pinkney 
goes  on  to  say: 


412 


SPEECH  OF  WILLIAM  M.  EVARTS 


“ It  must  be  obvious  that,  without  a superintending  government, 
it  is  impossible  the  liberties  of  this  country  can  long  be  secure. 
Single  and  unconnected,  how  weak  and  contemptible  are  the  largest 
of  our  States!  how  unable  to  protect  themselves  from  external  or 
domestic  insult!  how  incompetent,  to  national  purposes,  would 
even  the  present  Union  be!  how  liable  to  intestine  war  and  con- 
fusion! how  little  able  to  secure  the  blessings  of  peace!  Let  us, 
therefore,  be  careful  in  strengthening  the  Union.  Let  us  remem- 
ber we  are  bounded  by  vigilant  and  attentive  neighbors  ” — (and 
now  Europe  is  within  ten  days,  and  they  are  near  neighbors) — 
‘‘who  view  with  a jealous  eye  our  rights  to  empire.” 


27.  Views  of  Alexander  H.  Stephens  on  the  sanctity  of 

THE  Union. 

Pursuing  my  design  of  limiting  my  citations  of  the  opinions  of 
public  men  to  those  who  have  received  honor  from,  and  conferred 
honor  on,  that  portion  of  our  country  and  those  of  our  country- 
men now  engaged  in  this  strife  with  the  general  government,  let  me 
ask  your  attention  to  a speech  delivered  by  Mr.  Stephens,  now  the 
Vice-President  of  the  so-called  Confederate  States,  on  the  very  eve 
of,  and  protesting  against,  this  effort  to  dissolve  the  Union.  I read 
from  page  220  and  subsequent  pages  of  the  documents  that  have 
been  the  subject  of  reference  heretofore: 

“The  first  question  that  presents  itself,”  says  Mr.  Stephens  to 
the  assembled  legislature  of  Georgia,  of  which  he  was  not  a mem- 
ber, but  which,  as  an  eminent  and  leading  public  man,  he  had  been 
invited  to  address,  “ is,  shall  the  people  of  the  South  secede  from 
the  Union  in  consequence  of  the  election  of  Mr.  Lincoln  to  the 
Presidency  of  the  United  States?  My  countrymen,  I tell  you 
frankly,  candidly  and  earnestly,  that  I do  not  think  that  they  ought. 
In  my  judgment,  the  election  of  no  man,  constitutionally  elected 
to  that  high  office,  is  sufficient  cause  for  any  State  to  separate  from 
the  Union.  It  ought  to  stand  by  and  aid  still  in  maintaining  the 
Constitution  of  the  country.  To  make  a point  of  resistance  to  the 
government,  to  withdraw  from  it  because  a man  has  been  constitu- 
tionally elected,  puts  us  in  the  wrong.  We  are  pledged  to  maintain 
the  Constitution.  Many  of  us  have  sworn  to  support  it. 

* ****** 

“ But  it  is  said  Mr.  Lincoln’s  policy  and  principles  are  against 
the  Constitution,  and  that,  if  he  carries  them  out,  it  will  be  de- 
structive of  our  rights.  Let  us  not  anticipate  a threatened  evil. 
If  he  violates  the  Constitution,  then  will  come  our  time  to  act. 
Do  not  let  us  break  it  because,  forsooth,  he  may.  If  he  does,  that 
is  the  time  for  us  to  strike.  ^ * My  countrymen,  I am  not 

of  those  who  believe  this  Union  has  been  a curse  up  to  this  time. 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS”  413 


True  men,  men  of  integrity,  entertain  different  views  from  me  on 
this  subject.  I do  not  question  their  right  to  do  so;  I would  not 
impugn  their  motives  in  so  doing.  Nor  will  I undertake  to  say 
that  this  government  of  our  fathers  is  perfect.  . There  is  nothing 
perfect  in  this  world,  of  a human  origin.  Nothing  connected  with 
human  nature,  from  man  himself  to  any  of  his  works.  You  may 
select  the  wisest  and  best  men  for  your  judges,  and  yet  how  many 
defects  are  there  in  the  administration  of  justice  ? You  may  select 
the  wisest  and  best  men  for  your  legislators,  and  yet  how  many 
defects  are  apparent  in  your  laws  ? And  it  is  so  in  our  govern- 
ment. 

“ But  that  this  government  of  our  fathers,  with  all  its  defects, 
comes  nearer  the  objects  of  all  good  governments  than  any  on  the 
face  of  the  earth,  is  my  settled  conviction.  Contrast  it  now  with 
any  on  the  face  of  the  earth.”  [“  England,”  said  Mr.  Toombs.] 
“England,  my  friend  says.  Well,  that  is  the  next  best,  I grant; 
but  I think  we  have  improved  upon  England.  Statesmen  tried 
their  apprentice  hand  on  the  government  of  England,  and  then  ours 
was  made.  Ours  sprung  from  that,  avoiding  many  of  its  defects, 
taking  most  of  the  good  and  leaving  out  many  of  its  errors,  and, 
from  the  whole,  constructing  and  building  up  this  model  republic, 
the  best  which  the  history  of  the  world  gives  any  account  of. 

“Compare,  my  friends,  this  government  with  that  of  Spain, 
Mexico,  the  South  American  Republics,  Germany,  Ireland — are 
there  any  sons  of  that  down-trodden  nation  here  to-night  ? — 
Prussia,  or,  if  you  travel  further  east,  to  Turkey  or  China.  Where 
will  you  go,  following  the  sun  in  his  circuit  round  our  globe,  to  find 
a government  that  better  protects  the  liberties  of  its  people,  and 
secures  to  them  the  blessings  we  enjoy  ? I think  that  one  of  the 
evils  that  beset  us  is  a surfeit  of  liberty,  an  exuberance  of  the  price- 
less blessings  for  which  we  are  ungrateful.  * * * ¥: 

“ When  I look  around  and  see  our  prosperity  in  everything — ■ 
agriculture,  commerce,  art,  science,  and  every  department  of  educa- 
tion, physical  and  mental,  as  well  as  moral  advancement,  and  our 
colleges — I think,  in  the  face  of  such  an  exhibition,  if  we  can,  with- 
out the  loss  of  power,  or  any  essential  right  or  interest,  remain  in 
the  Union,  it  is  our  duty  to  ourselves  and  to  posterity  to — let  us 
not  too  readily  yield  to  this  temptation — do  so.  Our  first  parents, 
the  great  progenitors  of  the  human  race,  were  not  without  a like 
temptation  when  in  the  garden  of  Eden.  They  were  led  to  believe 
that  their  condition  would  be  bettered,  that  their  eyes  would  be 
opened,  and  that  they  would  become  as  gods.  They  in  an  evil 
hour  yielded.  Instead  of  becoming  gods,  they  only  saw  their  own 
nakedness. 

“ I look  upon  this  country,  with  our  institutions,  as  the  Eden  of 
the  world,  the  paradise  of  the  Universe.  It  may  be  that  out  of  it 
we  may  become  greater  and  more  prosperous,  but  I am  candid  and 
sincere  in  telling  you  that  I fear  if  we  rashly  evince  passion,  and, 
without  sufficient  cause,  shall  take  that  step,  that,  instead  of  becom- 


414 


SPEECH  OF  WILLIAM  M.  EVARTS 


ing  greater  and  more  peaceful,  prosperous  and  happy — instead  of 
becoming  gods — we  will  become  demons,  and,  at  no  distant  day, 
commence  cutting  one  another’s  throats.” 

Still  speaking  of  our  government,  he  says: 

“ Thus  far  it  is  a noble  example,  worthy  of  imitation.  The 
gentleman  (Mr.  Cobb)  the  other  night  said  it  had  proven  a failure. 
A failure  in  what  ? In  growth  ? Look  at  our  expanse  in  national 
power.  Look  at  our  population  and  increase  in  all  that  makes  a 
people  great.  A failure?  Why,  we  are  the  admiration  of  the 
civilized  world,  and  present  the  brightest  hopes  of  mankind. 

“ Some  of  our  public  men  have  failed  in  their  aspirations;  that 
is  true,  and  from  that  comes  a great  part  of  our  troubles. 

“ No,  there  is  no  failure  of  this  government  yet.  We  have 
made  great  advancement  under  the  Constitution,  and  I cannot  but 
hope  that  we  shall  advance^  higher  still.  Let  us  be  true  to  our 
cause.” 

Now,  wherein  is  it  that  this  government  deserves  these  encomi- 
ums which  come  from  the  intelligent  and  profound  wisdom  of 
statesmen,  and  gush  spontaneously  from  the  unlearned  hearts  of 
the  masses  of  the  people  ? Why,  it  is  precisely  in  this  point,  of  its 
not  being  a consolidated  government,  and  of  its  not  being  a narrow 
and  feeble  and  weak  community  and  government.  Indeed,  I may 
be  permitted  to  say  that  I once  heard,  from  the  lips  of  Mr.  Calhoun 
himself,  this  recognition,  both  of  the  good  fortune  of  this  country 
in  possessing  such  a government,  and  of  the  principal  sources  to 
which  the  gratitude  of  a nation  should  attribute  that  good  fortune. 
I heard  him  once  say,  that  it  was  to  the  wisdom,  in  the  great  con- 
vention, of  the  delegates  from  the  State  of  Connecticut,  and  of 
Judge  Patterson,  a delegate  from  the  State  of  New  Jersey,  that  we 
owed  the  fact  that  this  government  was  what  it  was,  the  best  gov- 
ernment in  the  world,  a confederated  government,  and  not  what  it 
would  have  been — and,  apparently,  would  have  been  but  for  those 
statesmen — the  worst  government  in  the  world,  a consolidated  gov- 
ernment. These  statesmen,  he  said,  w^ere  wiser  for  the  South  than 
the  South  was  for  herself. 

I need  not  say  to  you,  gentlemen,  that  if  all  this  encomium  on 
the  great  fabric  of  our  government  is  brought  to  naught,  and  is 
made  nonsense  by  the  proposition  that,  although  thus  praised  and 
thus  admired,  it  contains  within  itself  the  principle,  the  right,  the 
duty  of  being  torn  to  pieces  whenever  a fragment  of  its  people 
shall  be  discontented  and  desire  its  destruction,  then  all  this  en- 
comium comes  but  as  sounding  brass  and  a tinkling  cymbal;  and 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS”  415 


the  glory  of  our  ancestors,  Washington,  and  Madison,  and  Jeffer- 
son, and  Adams;  the  glory  of  their  successors,  Webster,  and  Clay, 
and  Wright,  and  even  Calhoun,  for  he  was  no  votary  of  this  non- 
sense of  secession,  passes  away,  and  their  fame  grows  visibly  paler, 
and  the  watchful  eye  of  the  English  monarchy  looks  on  for  the 
bitter  fruits  to  be  reaped  by  us  for  our  own  destruction,  and  as  an 
example  to  the  world,  the  bitter  fruits  of  the  principle  of  revolution 
and  of  the  right  of  self-government  which  we  dared  to  assert  against 
her  perfect  control.  Pointing  to  our  exhibition  of  an  actual  con- 
course of  armies,  she  will  say:  “It  is  in  the  dragon’s  teeth,  in  the 
right  of  rebellion  against  the  monarchy  of  England,  that  these  armed 
hosts  have  found  their  seed  and  sprung  up  on  your  soil.” 

28.  Marvelous  success  of  our  government. 

Now,  gentlemen,  such  is  our  government,  such  is  its  beneficence, 
such  is  its  adaptation,  and  such  are  its  successes.  Look  at  its  suc- 
cesses. Not  three-quarters  of  a century  nave  passed  away  since 
the  adoption  of  its  Constitution,  and  now  it  rules  over  a territory 
that  extends  from  the  Atlantic  to  the  Pacific.  It  fills  the  wide  belt 
of  the  earth’s  surface  that  is  bounded  by  the  provinces  of  England 
on  the  north,  and  by  the  crumbling  and  weak  and  contemptible 
governments,  or  no  governments,  that  shake  the  frame  of  Mexico 
on  the  South.  Have  nature  and  providence  left  us  without  re- 
sources to  hold  together  social  unity,  notwithstanding  the  vast  ex- 
panse of  the  earth’s  surface  which  our  population  has  traversed  and 
possessed  ? No.  Keeping  pace  with  our  wants  in  that  regard,  the 
rapid  locomotion  of  steam  on  the  ocean,  and  on  our  rivers  and 
lakes,  and  on  the  iron  roads  that  bind  the  country  together,  and 
the  instantaneous  electric  communication  of  thought,  which  fills 
with  the  same  facts,  and  with  the  same  news,  and  with  the  same 
sentiments,  at  the  same  moment,  a great,  enlightened  and  intelligent 
people,  have  overcome  all  the  resistance  and  all  the  dangers  which 
might  be  attributed  to  natural  obstructions.  Even  now,  while  this 
trial  proceeds,  San  Francisco  and  New  York,  Boston  and  Portland, 
and  the  still  farther  east,  communicate  together  as  by  a flash  of 
lightning  ; indeed,  it  may  be  said,  making  an  electric  flash  farther 
across  the  earth’s  surface — and  intelligible,  too,  to  man — than  ever, 
in  the  natural  phenomena  of  the  heavens,  the  lightning  displayed 
itself.  No;  the  same  author  of  all  good,  to  whom  Pinkney  avowed 
his  gratitude,  has  been  our  friend  and  our  protector,  and  has  re- 
moved, step  by  step,  every  impediment  to  our  expansion  which  the 


416 


SPEECH  OF  WILLIAM  M.  EVARTS 


laws  of  nature  and  of  space  had  been  supposed  to  interpose.  No, 
no  ; neither  in  the  patriotism  nor  in  the  wisdom  of  our  fathers  was 
there  any  defect;  nor  shall  we  find,  in  the  disposition  and  purposes 
of  divine  providence,  as  we  can  see  them,  any  excuse  or  any  aid 
for  the  destruction  of  this  magnificent  system  of  empire.  No;  it  is 
in  ourselves,  in  our  own  time  and  in  our  own  generation,  in  our 
own  failing  powers  and  failing  duties,  that  the  crash  and  ruin  o' 
this  magnificent  fabric,  and  the  blasting  of  the  future  hopes  of  man- 
kind, is  to  find  its  cause  and  its  execution. 

Here  Mr.  Evarts  showed  that  there  was  nothing  in  the  declaration  of  inde- 
pendence to  justify  the  right  of  revolution,  except  for  some  cause  proceeding 
from  the  general  government  amounting  to  absolute  despotism  or  a denial  of  the 
right  of  representation.  He  then  reviewed  all  the  alleged  grievances  of  which 
the  South  complained,  to  show  that  none  of  them  proceeded  from  the  federal 
government,  and  that  they  were  without  any  real  foundation,  because  the  South 
was  fully  represented,  and  slavery  was  protected  by  the  federal  statutes,  which 
were  enforced  by  the  United  States  courts. 

29.  Distinction  between  power  and  right. 

Now,  my  learned  friends,  pressed  by  this  difficulty  as  to  the 
sufficiency  of  the  causes,  are  driven  finally  to  this:  that  there  is  a 
right  of  revolution  when  anybody  thinks  there  is  a right  of  revolu- 
tion, and  that  that  is  the  doctrine  upon  which  our  government  rests, 
and  upon  which  the  grave,  serious  action  of  our  forefathers  pro- 
ceeded. And  it  comes  down  to  the  proposition  of  my  learned 
friend,  Mr.  Brady,  that  it  all  comes  to  the  same  thing,  the  power 
and  the  right.  All  the  argument,  most  unquestionably,  comes  to 
that.  But  do  morals,  does  reason,  does  common  sense  recognize 
that,  because  power  and  right  may  result  in  the  same  consequences, 
therefore  there  is  no  difference  in  their  quality,  or  in  their  support, 
or  in  their  theory  ? If  I am  slain  by  the  sword  of  justice  for  my 
crime,  or  by  the  dagger  of  an  assassin  for  my  virtue,  I am  dead, 
under  the  stroke  of  either.  But  is  one  as  right  as  the  other  ? An 
oppressive  government  may  be  overthrown  by  the  uprising  of  the 
oppressed,  and  Lord  Camden’s  maxim  may  be  adhered  to,  that 
‘‘when  oppression  begins,  resistance  becomes  a right;”  but  a gov- 
ernment, beneficent  and  free,  may  be  attacked,  may  be  overthrown 
by  tyranny,  by  enemies,  by  mere  power.  The  colonies  may  be 
severed  from  Great  Britain,  on  the  principle  of  the  right  of  the 
people  asserting  itself  against  the  tyranny  of  the  parent  govern- 
ment; and  Poland  may  be  dismembered  by  the  interested  tyranny 


IN  THE  CASE  OF  THE  “SAVANNAH  PRIVATEERS; 


417 


of  Russia  and  Austria;  and  each  is  a revolution  and  destruction  of 
the  government,  and  its  displacement  by  another — a dismember- 
ment of  the  community,  and  the  establishment  of  a new  one  under 
another  government.  But  do  my  learned  friends  say  that  they 
equally  come  to  the  test  of  power  as  establishing  the  right  ? Will 
my  learned  friend  plant  himself,  in  justification  of  this  dismember- 
ment of  a great,  free  and  prosperous  people,  upon  the  example  of 
the  dismemberment  of  Poland,  by  the  introduction  of  such  influ- 
ences within,  and  by  the  co-operation  of  such  influences  without, 
as  secured  that  result  ? Certainly  not.  And  yet  if  he  puts  it  upon 
the  right  and  the  power,  as  coming  to  the  same  thing,  it  certainly 
cannot  make  any  difference  whether  the  power  proceeds  from  with- 
in or  from  without.  There  is  no  such  right.  Both  the  public  ac- 
tion of  communities  and  the  private  action  of  individuals  must  be 
tried,  if  there  is  any  trial,  any  scrutiny,  any  judgment,  any  deter- 
mination, upon  some  principles  that  are  deeper  than  the  question 
of  counting  bayonets.  When  we  are  referred  to  the  case  of  Victor 
Emanuel  overthrowing  the  throne  of  the  king  of  Naples,  and  thus 
securing  the  unity  of  the  Italian  people  under  a benign  govern- 
ment, are  we  to  be  told  that  the  same  principle  and  the  same  prop- 
osition would  have  secured  acceptance  before  the  forum  of  civiliza- 
tion, and  in  the  eye  of  morality,  to  a successful  effort  of  the  tyrant 
of  Naples  to  overthrow  the  throne  of  Victor  Emanuel,  and  include 
the  whole  of  Italy  under  his.  King  Bomba’s,  tyranny?  No  one. 
The  quality  of  the  act,  the  reason,  the  support,  and  the  method  of 
it,  are  traits  that  impress  their  character  on  those  great  public  and 
national  transactions  as  well  as  upon  any  other. 

30.  Good  faith  no  defense. — Case  of  John  Brown. 

There  is  but  one  proposition,  in  reason  and  morality,  beyond 
those  I have  stated,  which  is  pressed  for  the  extrication  and  abso- 
lution of  these  prisoners  from  the  guilt  that  the  law,  as  we  say,  im- 
presses upon  their  action  and  visits  with  its  punishment.  It  is  said 
that,  however  little,  as  matter  of  law,  these  various  rights  and  pro- 
tections may  come  to,  good  faith,  or  sincere,  conscientious  convic- 
tion on  the  part  of  these  men  as  to  what  they  have  done,  should 
protect  them  against  the  public  justice. 

Now,  we  have  heard  a great  deal  of  the  assertion  and  of  the 
execration  of  the  doctrine  of  the  ‘‘  higher  law,”  in  the  discussions 
of  legislation  and  in  the  discussions  before  the  popular  mind;  but 
I never  yet  have  heard  good  faith  or  sincere  opinion  pressed,  in  a 
27 


418 


SPEECH  OF  WILLIAM  M.  EVARTS 


court  of  justice,  as  a bar  to  the  penalty  which  the  law  has  soberly 
affixed,  in  the  discreet  and  deliberate  action  of  the  legislature. 
And  here  my  learned  friend  furnishes  me,  by  his  reference  to  the 
grave  instance  of  injury  to  the  property,  and  the  security,  and  the 
authority  of  the  State  of  Virginia,  which  he  has  spoken  of  as 
John  Brown’s  raid,”  with  a ready  instance  in  which  these  great 
principles  of  public  justice,  the  authority  of  government,  and  the 
sanction  of  human  law  were  met,  in  the  circumstances  of  the  trans- 
action, by  a complete,  and  thorough,  and  remarkable  reliance,  for 
the  motive,  the  support,  the  stimulus,  the  solace,  against  all  the 
penalties  which  the  law  had  decreed  for  such  a crime,  on  this  in- 
terior authority  of  conscience,  and  this  supremacy  of  personal 
duty,  according  to  the  convictions  of  him  who  acts.  The  great 
State  of  Virginia  administered  its  justice,  and  it  found,  as  its  prin- 
cipal victim,  this  most  remarkable  man,  in  regard  to  whom  it  was 
utterly  impossible  to  impute  anything  like  present  or  future,  near  or 
remote,  personal  interest  or  object  of  any  kind:  a man  in  regard 
to  whom  Governor  Wise,  of  Virginia,  said,  in  the  very  presence  of 
the  transaction  of  his  trial,  that  he  was  the  bravest,  the  sincerest, 
the  truthfulest  man  that  he  ever  knew.  And  now  let  us  look  at 
the  question  in  the  light  in  which  our  learned ’friend  presents  it: 
that  John  Brown,  as  matter  of  theoretical  opinion  of  what  he  had  a 
right  to  do  under  the  Constitution  and  laws  of  his  country,  was 
justified  upon  the  pure  basis  of  conscientious  duty  to  God;  and  let 
us  see  whether,  before  the  tribunals  of  Virginia,  as  matter  of  fact 
or  matter  of  law,  or  right  or  duty,  any  recognition  was  given  to  it. 
No.  John  Brown  was  not  hung  for  his  theoretical  heresies,  nor 
was  he  hung  for  his  hallucinations  of  his  judgment  and  the  aberra- 
tion of  his  wrong  moral  sense,  if  you  so  call  it,  instead  of  the  in- 
terior light  of  conscience,  as  he  regarded  it.  He  was  hung  for 
attacking  the  sovereignty,  the  safety,  the  citizens,  the  property,  and 
the  people  of  Virginia.  And  when  my  learned  friend  talks  about 
this  question  of  hanging  for  political,  moral  or  social  heresy,  and 
that  you  cannot  thus  coerce  the  moral  power  of  the  mind,  he  vainly 
seeks  to  beguile  your  judgment.  When  Ravaillac  takes  the  life  of 
good  King  Henry,  of  France,  is  it  a justification  that,  in  the  inter- 
ests of  his  faith,  holy  to  him — of  the  religion  he  professed — he  felt 
impelled  thus  to  take  the  life  of  the  monarch  ? When  the  assassin 
takes,  at  the  door  of  the  House  of  Commons,  the  life  of  the  prime 
minister,  Mr.  Percival,  because  he  thinks  that  the  course  of  meas- 
ures liis  administration  proposes  to  carry  out  is  dangerous  to  the 


IN  THE  CASE  OF  THE  “SAVANNAH  rRIVATEERS.”  419 


country,  and  falls  a victim  to  violated  laws,  I ask,  in  the  name  of 
common  sense  and  common  fairness,  are  these  executions  to  be 
called  hanging  for  political  or  religious  heresies  ? No.  And  shall 
it  ever  be  said  that  sincere  convictions  on  these  theories  of  seces- 
sion and  of  revolution  are  entitled  to  more  respect  than  sincere 
convictions  and  opinions  on  the  subject  of  human  rights  ? Shall  it 
be  said  that  faith  in  Jefferson  Davis  is  a greater  protection  from 
the  penalty  of  the  law  than  faith  in  God  was  to  John  Brown  or 
Francis  Ravaillac  ? 

Here  Mr.  Evarts  showed  that  the  exchange  of  flags  of  truce  and  capitula- 
tions did  not  constitute  such  a recognition  of  the  enemy  as  justified  rebellion  or 
a violation  of  law.  That  what  the  government  had  done  in  this  respect  in  the 
past,  was  no  bar  to  future  action.  That  it  was  the  duty  of  the  government  to 
show  that  resort  to  war,  as  a means  of  redress,  was  error  ; that  the  remedy  for  all 
grievances,  real  or  imaginary,  is  in  the  region  of  debate  and  opinion  and  equal 
representation.  He  then  read  a letter  from  Garibaldi,  showing  that  the  Italian 
patriot  did  not  share  the  views  of  the  defense  in  regard  to  the  war,  his  sympa- 
thies being  with  the  federal  government^  After  quoting  from  Mr.  Webster's 
speech,  delivered  on  the  centennial  anniversary  of  the  birthday  of  Washington, 
in  1832,  in  which  he  eulogized  the  establishment  of  our  government  as  the 
greatest  achievement  in  human  affairs,  he  concluded  as  follows : 

If,  gentlemen,  the  eloquence  of  Mr.  Webster,  which  thus  en- 
shrines the  memory  and  the  great  life  of  Washington,  calls  us  back 
to  the  glorious  recollections  of  the  revolution  and  the  establishment 
of  our  government,  does  it  not  urge  every  man  everywhere  that  his 
share  in  this  great  trust  is  to  be  performed  now  or  never,  and 
wherever  his  fidelity  and  his  devotion  to  his  country,  its  govern- 
ment and  its  spirit,  shall  place  the  responsibility  upon  him  ? It  is 
not  the  fault  of  the  government,  of  the  learned  district  attorney,  or 
of  me,  his  humble  associate,  that  this,  your  verdict,  has  been  re- 
moved, by  the  course  of  this  argument  and  by  the  course  of  this 
eloquence  on  the  part  of  the  prisoners,  from  the  simple  issue  of 
the  guilt  or  innocence  of  these  men  under  the  statute.  It  is  not 
the  action  or  the  choice  of  the  government,  or  of  its  counsel,  that 
you  have  been  drawn  into  higher  considerations.  It  is  not  our 
fault  that  you  have  been  invoked  to  give,  on  the  undisputed  facts 
of  the  case,  a verdict  which  shall  be  a recognition  of  the  power, 
the  authority,  and  the  right  of  the  rebel  government  to  infringe  our 
laws,  or  partake  in  the  infringement  of  them,  to  some  form  and 
extent.  And  now,  here  is  your  duty,  here  your  post  of  fidelity,  not 

^ For  the  reference  to  Garibaldi,  see  ante,  p.  357;  for  the  letter,  see  Ap- 
pendix, p.  723, 


420 


SPEECH  OF  WILLIAM  M.  EVARTS. 


against  law,  not  against  the  least  right  under  the  law,  but  to  susv 
tain,  by  whatever  sacrifice  there  may  be  of  sentiment  or  of  feeling, 
the  law  and  the  Constitution.  I need  not  say  to  you,  gentlemen, 
that  if,  on  a state  of  facts  which  admits  no  diversity  of  opinion, 
with  these  opposite  forces  arrayed,  as  they  now  are,  before  you — 
the  Constitution  of  the  United  States,  the  laws  of  the  United 
States,  the  commission  of  this  learned  court,  derived  from  the  gov- 
ernment of  the  United  States,  the  venire  and  the  impaneling  of 
this  jury,  made  under  the  laws  and  by  the  authority  of  the  United 
States,  on  our  side;  met,  on  their  side,  by  nothing,  on  behalf  of 
the  prisoners,  but  the  commission,  the  power,  the  right,  the  author- 
ity of  the  rebel  government,  proceeding  from  Jefferson  Davis — you 
are  asked,  by  the  law,  or  under  the  law,  or  against  the  law,  in  some 
form,  to  recognize  this  power,  and  thus  to  say  that  the  folly  and 
the  weakness  of  a free  government  find  here  their  last  extravagant 
demonstration,  then  you  are  asked  to  say  that  the  vigor,  the  judg- 
ment, the  sense,  and  the  duty  of  a jury,  to  confine  themselves  to 
their  responsibility  on  the  facts  of  the  case,  are  worthless  and  yield- 
ing before  impressions  of  a discursive  and  loose  and  general  nature. 
Be  sure  of  it,  gentlemen,  that,  on  what  I suppose  to  be  the  facts 
concerning  this  particular  transaction,  a verdict  of  acquittal  is 
nothing  but  a determination  that  our  government  and  its  authority, 
in  the  premises  of  this  trial,  for  the  purposes  of  your  verdict,  are 
met  and  overthrown  by  the  protection  thrown  around  the  prisoners 
by  the  government  of  the  Confederate  States  of  America,  actual  or 
incipient.  Let  us  hope  that  you  will  do  what  falls  to  your  share  in 
the  post  of  protection  in  which  you  are  placed,  for  the  liberties  of 
this  nation  and  the  hopes  of  mankind;  for,  in  surrendering  them, 
you  will  be  forming  a part  of  the  record  on  the  common  grave  of 
the  fabric  of  this  government,  and  of  the  hopes  of  the  human  race, 
v/here  our  flag  shall  droop,  with  every  stripe  polluted  and  every 
star  erased,  and  the  glorious  legend  of  “liberty  and  Union,  now 
and  forever,  one  and  inseparable,”  replaced  by  this  mournful  con- 
fession, “ unworthy  of  freedom,  our  baseness  has  surrendered  the 
liberties  which  we  have  neither  the  courage  nor  the  virtue  to  love  or 
defend.” 


Judge  Nelson  delivered  the  charge  to  the  jury,  on  Wednesday  afternoon, 
October  30,  at  the  close  of  Mr.  Evarts’  address.  They  remained  out  all  night, 
und,  being  unable  to  agree,  were  discharged  by  the  court  on  the  following  day. 


ARGUMENT  OF  JOHN  K.  PORTER, 


On  the  Constitutionality  of  Legal  Tender  Acts.— 
Metropolitan  Bank  v.  Van  Dyck. 

[27  N.  Y.  400.] 

BEFORE  THE  COURT  OF  APPEALS  OF  THE  STATE  OF  NEW 
YORK,  AT  ALBANY,  JUNE  27th,  1863. 


Analysis  of  Mr.  Porter’s  Argument. 


X.  Object  and  purpose  of  the  Constitution, 
and  the  powers  delegated  to  give  it 
effect. 

а.  The  exigencies  which  made  it  necessary 

to  pledge  the  public  credit  for  the  pub- 
lic defense. 

3.  Results  of  the  measures  adopted  by  Con- 

gress. 

4.  The  power  of  Congress  to  declare  what 

shall  be  a legal  tender,  not  prohibited 
by  the  Constitution. 

5.  Why  this  power  was  not  conferred  in 

specific  terms. 

б.  How  the  power  to  create  a legal  tender 

was  exercised  in  Colonial  times. 

7.  Congress,  by  creating  a “ uniform  ” cur- 

rency, fulfilled  a constitutional  trust. 

8.  Enumeration  of  the  incidents  of  the  war 

power  vested  in  Congress. 

9.  Review  of  the  events  of  the  war. — An  his- 

torical retrospect. 

10.  Nature  f the  crisis  which  demanded  the 

passage  of  the  legal- tender  acts. 


11.  The  desperate  alternative  forced  upon 

Congress. 

12.  The  power  to  pass  the  legal-tender  acts 

exists  by  express  grant,  and  by  nec- 
essary implications. 

13.  Postulates  which  those  who  seek  to  nul- 

lify the  legal-tender  acts  must  estab- 
lish. 

14.  The  power  to  create  a legal  tender  ex- 

isted prior  to  the  adoption  of  the  Con- 
stitution, and  was  either  vested  in 
Congress  or  extinguished. 

15.  The  inquiry  whether  self-preservation 

is  an  inherent  right  rising  above 
constitutional  limitations,  does  not 
arise. 

16.  Meaning  of  the  terms  “legal  tender" 

and  “money”  considered  and  dis- 
tinguished. — The  subject  of  legal 
tender. 

17.  All  the  attributes  of  sovereignty  pre- 

sumed to  exist,  till  those  who  deny  it 
establish  the  contrary. 


The  Metropolitan  Bank,  the  party  plaintiff  in  this  action,  was  a banking 
corporation,  located  and  doing  business  in  the  city  of  New  York,  and  organized 
under  and  by  virtue  of  the  laws  of  that  State.  By  its  charter,  it  was  authorized 
to  issue  circulating  notes  to  a fixed  and  limited  amount,  upon  depositing  with  the 
bank  department  proper  securities  for  the  redemption  and  payment  of  its  cur- 
rency so  issued.  The  statute  further  provided,  in  case,  after  lav/ful  demand, 
default  should  be  made  in  the  payment  of  any  of  its  notes  in  “lawful  money  of 
the  United  States,”  that  the  holder  of  such  notes  should  cause  the  same  to  be 
protested ; and  the  bank  department  was  authorized,  upon  receiving  notice  of 
such  protest,  to  institute  proceedings  as  prescribed  by  the  statute  to  enforce  pay- 
ment out  of  the  securities  deposited  with  him  for  that  purpose,  and,  if  need  be, 

[4211 


422 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


to  sell  the  same.  On  the  26th  of  March,  1863,  one  D.  Valentine,  being  the 
owner  and  holder  of  a bill  or  note  of  the  denomination  of  ten  dollars,  issued  by 
the  Metropolitan  Bank,  presented  the  same  to  the  proper  officer  and  demanded 
payment  thereof  in  gold  or  silver  coin  of  the  United  States,  which  was  refused. 
The  bank,  however,  tendered  to  Valentine,  and  offered  to  pay  the  note  presented 
by  him  for  redemption,  with  a note  of  the  denomination  of  ten  dollars,  issued 
by  the  Secretary  of  the  Treasury  upon  the  credit  of  the  United  States,  underand 
by  virtue  of  an  act  of  Congress,  entitled  “An  act  to  authorize  the  issue  of  United 
States  notes,  and  for  the  redemption  or  funding  thereof,  and  for  funding  the 
floating  debt  of  the  United  States,”  approved  February  25th,  1862.  The  tender 
was  refused.  The  note  was  duly  protested,  and  notice  of  protest  filed  with  the 
defendant,  Henry  PI.  Van  Dyck,  Superintendent  of  the  Bank  Department,  as 
required  by  law.  The  defendant  then  notified  the  plaintiff,  that  the  note  which 
Valentine  had  presented  for  redemption  must  be  paid  within  fifteen  days  in  gold 
or  silver  coin,  or,  in  default  thereof,  he  would  proceed  to  sell  the  securities  de- 
posited with  him,  and  redeem  said  note  according  to  the  requirements  of  the 
statute. 

The  plaintiff  accordingly  brought  this  action  to  restrain  the  defendant  from 
taking  any  steps  towards  the  sale  of  the  stock  or  trust  funds  in  his  hands  belong- 
ing to  plaintiff,  on  the  ground  that  the  money  tendered  by  it  to  Valentine,  by 
way  of  redemption,  was  “lawful  money  of  the  United  States,”  and  that  said 
tender  was  a valid  and  legal  tender.  The  issue  involved,  therefore,  was  the 
validity  of  the  act  of  February  25th,  1862.  If  Congress  had  no  power  to  pro- 
vide for  the  payment  of  the  national  debt,  and  to  create  a currency  for  that  pur- 
pose upon  the  credit  of  the  government,  and  to  make  such  currency  a legal  tender  in 
payment  of  all  debts  public  and  private,  then  the  money  tendered  by  the  plaintiff 
in  payment  of  its  note  was  not  “lawful  money  of  the  United  States,”  and  no 
legal  tender  had  been  made.  The  court  below  held,  that  Congress  had  power 
to  pass  the  law  creating  a national  currency,  and  giving  it  the  quality  of  a legal 
tender  in  payment  of  all  debts,  and  enjoined  the  defendant  from  instituting  pro- 
ceedings to  sell  plaintiff’s  securities.  From  that  decision  this  appeal  was  taken. 

The  importance  of  the  question  presented  was,  at  the  critical  period  when  it 
arose,  beyond  all  calculation,  and  the  result  of  the  decision  will  be  of  vital  con- 
sequence as  long  as  the  republic  shall  endure.  The  government  was  engaged  in 
suppressing  the  most  formidable  rebellion  known  to  history;  a struggle  which 
has  been  justly  regarded  as  the  greatest  of  modern  wars.  Congress  was  conse- 
quently obliged  to  create  a currency,  and  issue  its  bonds  to  provide  means  to 
maintain  and  support  the  fleets  and  armies  enlisted  to  preserve  its  existence.  If 
the  courts  should  declare  that  Congress  had  no  constitutional  power  to  do  this,  or 
to  make  its  notes  a legal  tender  for  private  as  well  as  public  debts,  the  effect  of 
the  decision  would  render  its  currency  and  bonds  valueless,  and  thus  deprive  the 
government  of  the  only  means  for  protecting  itself  from  utter  dissolution.  It 
was  an  issue,  therefore,  which  concerned  the  very  existence  of  the  nation — 
whether  it  could  exercise  the  right  of  self-preservation  under  the  Constitution. 
It  has  been  frequently  claimed  that,  independent  of  express  statutory  authority, 
the  right  of  existence  is  inherent  in  every  sovereignty,  outweighing  all  considera^ 
tions,  and  rising  above  all  constitutional  limitations.  Philosophical  and  histori- 
cal writers  in  different  ages,  and  at, different  periods,  have  agreed  that  self-pres* 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


423 


ervation  is  the  supreme  law,  the  application  of  which  is  universal,  embracing 
within  its  scope  communities  as  well  as  individuals,  nations  as  well  as  men. 
History  records  instances  in  which  this  doctrine  has  been  invoked,  and  consti- 
tutes the  only  authority  upon  which  the  measures  of  the  government  could  be 
sustained.  But  history  also  teaches,  that  such  a course,  however  justifiable  for 
the  moment,  has  always  been  productive  of  the  greatest  evils,  because  men  who 
have  exercised  power  without  constitutional  authority,  even  to  save  a nation’s 
life,  have  never  failed  afterwards  to  make  such  actions  a pretext  for  the  exercise 
of  unlawful  authority  to  further  schemes  of  personal  ambition.  Judge  Porter, 
however,  contended  for  no  such  doctrine.  He  recognized  in  it  principles  which 
were  dangerous  in  the  extreme.  With  marked  ingenuity  and  great  power  of 
reasoning,  he  showed  that  the  framers  of  our  Constitution,  in  their  consummate 
political  wisdom,  had  provided  for  the  exercise  of  such  a power  within  that  in- 
strument by  an  express  grant  to  Congress,  so  that,  in  the  exercise  of  this  most 
important  attribute  of  sovereignty,  it  was  not  necessary  to  go  beyond  the  organic 
law.  The  decision  of  the  lower  court  was  affirmed.  Judges  Selden  and  Denio 
dissented  from  the  opinion  of  the  court,  upon  the  ground  that,  while  Congress 
had  power  to  issue  money,  it  had  no  power  to  make  its  currency  a legal  tender  in 
payment  of  private  debts,  or  to  compel  an  individual  to  accept  it  in  payment 
therefor.  Mr.  J.  V.  W.  Doty  and  George  Ticknor  Curtis  appeared  for  the  appel- 
lant; and  William  Curtis  Noyes  and  John  K.  Porter  for  the  respondents.  Mr. 
Porter  said: 

May  it  please  the  Court: — The  able  and  exhaustive  argu- 
ment of  my  learned  associate  has  left  nothing  with  which  I can 
ogcupy  profitably  the  portion  of  time  allotted  for  my  part  in  the 
discussion,  unless  it  be  to  submit  some  general  suggestions  as  to 
the  powers  of  Congress  under  the  Constitution,  in  the  varying  exi- 
gencies of  peace  and  of  civil  and  foreign  war. 

Precisely  here  is  the  point  from  which,  in  our  reasonings,  we 
begin  to  diverge  from  my  learned  friend,  Mr.  Curtis,  who,  in  his 
opening  argument,  has  presented  with  so  much  perspicuity  and 
learning  all  that  can  be  urged  against  the  power  of  the  government 
to  uphold  itself  against  treason,  and  to  defend  against  the  violence 
of  rebellion  the  people  by  whose  authority  the  Union  was  ordained. 

We  submit  that  there  is  and  can  be  no  bolder  constitutional 
heresy  than  the  proposition  which,  though  not  advanced  in  terms, 
pervades  the  entire  argument  of  our  adversaries,  that  the  Constitu- 
tion is  a mere  compact  between  the  States,  or,  at  most,  a mere 
power  of  attorney  from  the  people  to  the  federal  government. 

It  is  an  ordinance  of  sovereignty^  framed  by  the  American  people 
through  their  representatives  in  national  convention,  and  subse- 
quently ratified  in  separate  conventions  by  the  people  of  each  of 
the  original  thirteen  States.  It  has  been  ratified  by  the  people  of 
each  of  the  younger  States  which  have  since  presented  themselves, 


424 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


from  time  to  time,  at  the  capitol  for  enrollment  as  members  of  the 
federal  Union,  and  to  seek  protection  and  strength  beneath  the 
aegis  of  the  Constitution. 

In  construing  this  ordinance,  it  is  to  be  read  in  view  of  the  un- 
limited power  of  those  who  framed  it,  and  the  magnitude  of  the 
objects  which  they  proclaimed  as  intended  and  secured  by  its 
adoption. 

The  preamble  of  the  Constitution  is  the  first  utterance  of  the 
nation  as  an  organized  government.  It  is  the  proclamation  of  their 
will,  their  purpose  and  their  act,  by  the  whole  American  people. 
In  every  exigency  of  national  existence,  it  continues  to  announce 
to  the  government  and  to  the  world  the  sovereign  objects  the  people 
sought  to  attain,  and  the  sovereign  powers  they  assumed  in  the 
Constitution  to  confer. 

I.  Object  and  purpose  of  the  Constitution,  and  the  powers 

DELEGATED  TO  GIVE  IT  EFFECT. 

In  the  light  thus  reflected  upon  it,  by  this  unanimous  and  au- 
thentic utterance  of  the  popular  will,  every  clause  of  the  ordinance 
is  to  be  read.  Each  grant  of  power  is  to  be  expounded  with  a 
view  to  the  great  ends  proclaimed  in  the  preamble.  The  Constitu- 
tion furnishes  in  its  first  words  its  own  irrevocable  rule  of  judg- 
ment. 

“We,  the  People  of  the  United  States,  in  order  to  form  a more 
perfect  Union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and  se- 
cure the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America.” 

Six  objects  are  proclaimed: 

(i.)  Cementing  the  Union;  (2.)  Establishing  justice;  (3.)  Insur- 
ing domestic  tranquillity;  (4.)  Providing  for  the  common  defense; 
(5.)  Promoting  the  general  welfare;  (6.)  Securing  to  ourselves  and 
our  posterity  the  blessings  of  liberty. 

To  secure  each  of  these  great  ends,  in  times  of  peace,  of  war, 
of  insurrection,  of  invasion,  of  public  repose,  of  public  danger,  the 
Constitution  commits  to  Congress,  as  the  representative  of  the 
popular  will,  the  powers  under  consideration  in  this  discussion,  to 
be  so  exercised  as  to  fulfill  each  and  all  of  these  high  trusts. 

It  empowers  the  representatives  of  the  people,  by  the  enactment 
of  laws,  subject  to  the  check  of  the  Presidential  veto: 


THE  METROPOLITAX  BANK  v.  VAN  DYCK. 


425 


(i.)  To  lay  and  collect  taxes;  (2.)  To  pay  the  public  debts; 
(3.)  To  provide  for  the  common  defense;  (4.)  To  regulate  com- 
merce; (5.)  To  coin  money;  (6.)  To  borrow  money;  (7.)  To  regu- 
late the  value  of  money;  (8.)  To  punish  counterfeiters  of  public 
securities  and  current  coin;  (9.)  To  declare  war;  (10.)  To  support 
armies;  (ii.)  To  maintain  navies;  (12.)  To  suppress  insurrections; 
(13.)  To  repel  invasions;  (14.)  To  enact  all  laws  needful  to  the 
execution  of  these  powers,  and  of  all  other  powers  vested  in  the 
government,  or  any  of  its  officers  or  departments  under  this  Con- 
stitution. 

Your  Honors  will  observe,  that  in  my  abstract  I have  marshaled 
these  powers,  not  in  the  order  of  their  enumeration  in  the  Consti- 
tution, but  in  the  order  appropriate  to  the  discussion  of  the  ques- 
tions now  submitted  for  judgment. 

2.  The  exigencies  which  made  it  necessary  to  pledge  the 

PUBLIC  CREDIT  FOR  THE  PUBLIC  DEFENSE. 

Exigencies  have  arisen  during  the  present  war,  which  have 
made  it  necessary,  in  order  to  enable  the  government  to  execute 
these  powers  and  to  preserve  its  own  existence,  to  employ  more 
money  than  exists  in  gold  and  silver  coin  in  the  Western  Hemi- 
sphere, and  more  than  probably  exists  to-day  on  the  face  of  the 
whole  earth. 

Ours  is  the  wealthiest  government  in  Christendom.  Its  re- 
sources are  boundless,  but  they  are  not  in  coin.  The  people  it  is 
charged  with  the  duty  of  defending,  is  rich,  but  not  in  coin.  The 
country  is  at  war  with  rebellious  States  in  which  paper  money  is  the 
legal  currency. 

We  have  debts  to  pay;  armies  and  navies  to  support;  insurrec- 
tion to  suppress;  invasion  to  repel;  a country  to  defend. 

Congress  has  adjudged,  with  the  concurrence  of  the  President, 
that  an  exigency  has  arisen  in  which  it  is  “ necessary  and  proper  ” 
for  the  protection  of  the  people  and  their  government,  to  make  the 
public  credit  available  for  the  public  defense,  and  to  make  the 
notes  of  the  United  States,  with  a pledge  of  the  public  faith,  a 
legal  tender  in  payment  of  public  and  private  debts;  and  laws  have 
accordingly  been  enacted  with  that  view,  from  time  to  time,  as  the 
necessities  of  the  nation  have  demanded. 

The  enemies  of  the  government,  at  home  and  abroad,  denounced 
these  acts,  as  they  have  denounced  every  measure  of  the  war.  The 
people,  of  course,  acquiesced.  They  appreciated  the  public  neces- 


426 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


sity.  If  Congress  had  failed  to  fulfill  its  trust,  it  would  have  pre- 
cipitated us  into  universal  bankruptcy;  and  this,  by  an  almost  in- 
evitable necessity,  would  have  involved  the  speedy  dissolution  of 
the  government. 

3.  Results  of  the  measures  adopted  by  Congress. 

The  policy  adopted  by  Congress,  with  the  concurrence  of  the 
Secretary  of  the  Treasury,  has  vindicated  itself  by  its  works.  The 
public  credit  has  been  maintained.  We  have  upheld  the  army  and 
the  navy,  while  they  in  turn  have  upheld  the  government.  We  have 
narrowed  the  lines  of  rebellion  and  compressed  the  throat  of 
treason.  Under  the  measures  adopted  by  Congress,  and  to-day 
arraigned  before  the  judiciary  which  owes  its  being  to  the  Consti- 
tution, the  people  of  the  loyal  States,  in  their  mere  material  inter- 
ests, are  more  prosperous  now,  in  a time  of  public  war,  than  any 
other  people  on  earth  in  periods  of  profound  peace. 

But  this  acquiescence  is  not  universal.  The  defendant  in  this 
particular  case  occupies  a mere  fiduciary  relation,  and  has  a record 
of  loyalty  which  will  honorably  connect  his  name  with  the  history 
of  New  York  during  this  memorable  war.  But  some  half  dozen 
gentlemen  of  a population  of  twenty  millions,  who  seem  to  have 
personal  and  private  interests  which  do  not  harmonize  with  “ the 
general  welfare  ” of  the  country,  which  it  is  the  constitutional  duty 
of  Congress  to  promote;  and  who  would  prefer  their  payments  in 
gold,  at  the  premium  it  bears  in  times  of  civil  commotion,  have  al- 
most simultaneously  invoked  the  courts,  in  this  and  in  other  States, 
to  nullify  these  acts  of  Congress,  and  to  fulfill  their  oaths  of  fidelity 
to  the  Constitution,  to  which  my  learned  adversary  so  impressively 
referred,  by  adjudging  it  to  be  utterly  impotent  even  for  its  own 
salvation. 

4.  The  power  of  Congress  to  declare  what  shall  be  a 

LEGAL  TENDER,  NOT  PROHIBITED  BY  THE 

Constitution. 

There  is  no  allegation,  either  by  these  non-contents  or  their 
counsel,  that  Congress  is  prohibited  from  declaring  by  law  what  shall 
be  a legal  tender  in  payment  of  private  or  of  public  debts. 

They  concede  that  the  omission  of  such  prohibition  was  not  in- 
advertent; for  the  subject  was  present  in  the  minds  of  the  framers 
of  the  Constitution,  and  the  tenth  section  of  the  same  article  which 
clothes  Congress  v/ith  the  broad  powers  to  which  I have  referred, 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


427 


expressly  prohibits  the  States  from  making  “ anything  but  gold  and 
silver  coin  a tender  in  payment  of  debts.”  ^ 

The  omission  was  confessedly  due  to  no  hesitation,  either  as  to 
the  propriety  or  necessity,  of  limiting  the  broad  powers  conferred 
on  Congress  by  the  eighth  section;  for  the  ninth  section  of  the  same 
article  contains  a series  of  emphatic  and  express  prohibitions. 

Neither  can  it  be  claimed  that  the  omission  was  due  to  inadvert- 
ence on  the  part  of  the  people;  for  after  full  discussion  of  every 
clause  of  the  Constitution  in  the  conventions  of  the  several  States, 
amendatory  articles  were  proposed,  consisting  mainly  of  limitations 
of  the  powers  of  Congress;  but  no  State  could  be  found  even  to 
propose  a prohibition  of  the  exercise  of  the  power,  inherent  in  all 
sovereignties,  of  determining  by  law  what  should  be  a tender  in 
payment  of  private  and  public  debts. 

Nor  was  the  omission  due  to  the  people’s  being  unmindful  that 
this  was  an  inherent  right  of  the  law-making  power  in  every  govern- 
ment claiming  to  be  supreme.  They  recognized  the  existence  of  the 
power,  by  prohibiting  its  exercise  by  the  States — which  were  not 
intended  to  be  supreme  in  matters  of  national  concern.  They  rec- 
ognized its  necessity^  by  not  extending  the  prohibition  to  the  general 
government,  which,  for  national  purposes,  they  invested  with  the 
high  attributes  of  sovereignty. 

5.  Why  this  power  was  not  conferred  in  specific  terms. 

They  did  not,  indeed,  commend  and  invite  its  exercise  by  con- 
ferring it  in  terms,  as  a separate  and  specific  power;  for  they  re- 
garded a departure  from  the  standard  of  gold  and  silver  as  an  evil 
to  be  deprecated,  unless  public  exigencies  should  make  it  a neces- 
sity to  avert  still  greater  evils. 

To  have  disarmed  the  government  of  a power,  which  the  experi- 
ence of  every  civilized  nation  had  shown  to  be  at  times  a condition 
of  national  existence,  would  have  been  to  deliver  it  over  in  bonds 
to  the  mercy  of  its  enemies,  in  periods  of  civil  convulsion  or  for- 
eign war. 

The  Constitution  was  adopted  by  a people  who,  before  they 
were  organized  into  a nation,  had  known  the  grip  of  the  strong 
vice  of  war.  They  had  felt  to  the  quick  the  mischiefs  of  a govern- 
ment currency,  issued  in  deference  to  inexorable  necessity,  and  to 
an  amount  far  exceeding  the  means  which  could  be  pledged  by  the 


* Constitution,  art.  i,  sec.  lo. 


428 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


States  for  its  redemption;  and  they  hoped  that  no  future  con- 
tingency would  impose  a like  necessity,  even  on  a responsible  gov- 
ernment.  But  they  also  knew  that  the  exercise  of  the  power  of 
making  the  notes  of  the  Colonies  a legal  tender  in  payment  of  the 
debts  of  their  citizens,  had  alone  enabled  them,  even  with  the  aid 
of  the  British  crown,  to  struggle  through  the  French  and  Indian 
wars,  and  the  hardships  and  vicissitudes  of  frontier  growth. 

6.  How  THE  POWER  TO  CREATE  A LEGAL  TENDER  WAS  EXER" 
CISED  IN  COLONIAL  TIMES. 

South  Carolina  led  the  van  in  1703.  New  York  and  Connecti- 
cut followed,  and  made  their  notes  a legal  tender  in  1709.  Rhode 
Island  fell  into  their  wake  in  1720;  Pennsylvania  in  1722;  Mary- 
land in  1733;  Delaware  in  1739;  North  Carolina  in  1748;  Virginia 
in  1755;  Georgia  in  1760.*  In  two  of  the  States,  tobacco  and 
beaver  skins  were  made  a legal  tender,  and  your  Honors  doubtless 
still  retain  your  schoolboy  memories  of  the  celebrated  Parson’s 
Case,  in  which  Wirt  so  charmingly  interwove  the  story  of  the 
wrongs  of  the  clergy,  with  the  eloquence  of  Patrick  Henry,  in  sup- 
port of  the  act  of  the  House  of  Burgesses  of  Virginia,  authorizing 
the  payment  in  gold  and  silver  of  the  stipend  which,  in  right  of 
the  church,  they  claimed  to  be  payable  only  in  the  narcotic  com- 
mended by  Sir  Walter  Raleigh  even  on  his  way  to  the  scaffold.^ 

In  1751,  the  imperial  parliament,  by  the  act  of  24  George  II, 
ch.  53,  sec.  2,  in  the  exercise  of  its  unlimited  and  undoubted  power, 
interdicted  the  further  emission  by  the  Colonies  of  bills  of  credit 
as  a legal  tender.  That  country  was  less  benign  to  our  fathers 
than  to  its  later  Colonies;  for  from  1833  to  the  present  hour,  the 
notes  of  the  Bank  of  England  have  been,  by  act  of  parliament,  a 
legal  tender  for  private  debts  in  every  part  of  the  British  empire.® 

The  Colonies  were  at  length  relieved  from  this  parliamentary 
restriction  by  the  Declaration  of  Independence — a declaration 
which  they  found  themselves  unable  to  maintain,  except  by  resum- 
ing the  exercise  of  the  governmental  power  of  making  their  notes  a 
legal  tender  for  public  and  private  debts. 

The  continental  money  has  been  much  maligned;  for  its  issues 

’ II  Peters,  333-7,  Briscoe  v.  Bank  of  Kentucky;  Cong.  Globe  of  1862, 

P.  797. 

® Wirt’s  Life  of  Henry,  38,  Philadelphia  ed.  1836. 

^ 3 & 4 William  IV,  ch.  98,  sec.  6. 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


429 


were  controlled  by  no  central  government,  and  were  too  inordinate 
in  amount  to  be  redeemed  by  States  reduced  to  bankruptcy  by  war. 

Yet  the  continental  money,  such  as  it  was,  was  the  price  paid 
for  our  existence  as  a government;  and  those  only  who  do  not 
deem  liberty  worth  what  it  cost  denounce  the  purchase,  because  it 
was  not  cheap  enough  for  the  money-changers,  some  of  whom  I 
fear  would  sell  it  now  for  half  its  cost,  and  take  their  pay  in  con- 
federate scrip. 

7.  Congress,  by  creating  a “uniform”  currency,  fulfilled 

A CONSTITUTIONAL  TRUST. 

Governments  cannot  wage  war  without  the  means  of  war.  The 
Colonies  were  poor.  We  are  rich.  We  know — the  world  knows — 
and  our  adversaries  concede,  that  every  dollar  of  our  debt  will  be 
paid.  Few  men  in  the  loyal  States  have  ventured  publicly  to  inti- 
mate a doubt  on  this  subject,  and  as  to-morrow  looms  higher  than 
yesterday,  it  would  be  more  grateful  even  to  them,  that  the  intima- 
tion should  be  forgotten,  than  that  it  should  be  remembered. 

No  man  believes  that  the  debt  of  England  will  ever  be  paid, 
unless  on  the  condition  of  the  downfall  of  the  British  monarchy. 
That  debt  is  the  security  of  the  throne.  No  such  security  is  needed 
by  a free  government.  Ours  is  a debt  due  to  the  people,  and  frojn 
the  people.  It  is  contracted  by  the  popular  will,  for  the  public  de- 
fense. 

Congress,  in  providing  for  the  issue  of  treasury  notes,  was.  not 
insensible  of  the  evils  that  followed  in  the  train  of  the  continental 
currency  which  paid  the  price  of  American  independence.  The 
chief  of  these  was,  that,  the  States  having  small  resources,  it  be- 
came matter  of  interest  to  speculators  in  the  misfortunes  of  their 
country  to  depreciate  the  public  credit.  Congress  resolved,  that  in 
this  war  for  maintaining  our  independence,  the  credit  of  the  gov- 
ernment should  be  upheld  by  the  army,  the  navy,  the  people  and 
the  law;  and  that  the  debt  we  are  compelled  to  incur  should  neither 
be  multiplied  now  by  exactions,  nor  repudiated  hereafter  on  the 
pretext  of  such  exactions. 

A popular  government  has  no  interest  of  its  own,  apart  from 
the  interests  of  the  whole  body  of  the  people.  Congress  imposed 
on  itself,  and  on  every  officer  of  the  government,  the  same  burden 
it  imposed  on  the  citizens  at  large.  It  held  its  powers  in  trust  for 
the  nation,  which  could  act  through  Congress,  and  through  Con- 
gress alone. 


430 


ARGUMENT  OF  JOHN  K PORTER  IN 


When  the  government  was  suddenly  summoned  in  the  exigencies 
of  a civil  war,  to  which  no  parallel  is  furnished  in  the  history  of 
man,  to  an  expenditure  of  two  millions  a day,  it  would  have  been  a 
breach  of  trust  to  put  its  bonds  carte  blanche  in  the  hands  of  specu- 
lators and  bind  the  people  to  pay  six  millions  for  each  two  millions 
expended. 

It  would  have  been  faithless  if  it  had  not  used  all  its  powers  to 
protect  them  from  exactions  destructive  of  every  interest. 

The  constitutional  trust  was  fulfilled.  The  complaint  of  our 
adversaries  is  that  it  was  not  betrayed. 

The  people,  through  the  House  of  Representatives  and  the 
President — the  States,  through  their  Senators  in  Congress — ad- 
judged the  existence  of  a necessity  for  means  for  the  public  defense, 
unparalleled  in  the  history  of  nations;  and  in  such  an  exigency 
ordained,  in  view  of  the  impending  struggle  for  the  salvation  of  the 
Constitution  and  the  republic,  that  there  should  be  a single  and 
uniform  currency,  alike  for  the  people  and  the  government,  resting 
on  the  firm  foundation  of  the  public  faith;  and  that  in  this  crisis  of 
war  and  civil  convulsion  the  private  creditor  should  exact  no  other 
or  better  pay  than  we  bestow  on  the  armies  whom  we  charge  by 
law  with  the  duty  of  defending  us,  at  the  peril  of  mutilation  and 
death,  and  at  the  easy  rate  of  thirteen  dollars  a month  payable  in 
treasury  notes. 

The  government  held — as  I trust  this  court  will  hold — that  the 
creditor  who  remains  at  home  has  no  higher  rights  in  a period  of 
public  war  than  those  whom  the  law  summons  to  the  deck  or  the 
camp. 

8.  Enumeration  of  the  incidents  of  the  war  power 
VESTED  IN  Congress. 

It  is  conceded*  that  the  government  can  constitutionally  compel 
every  citizen  to  serve  in  the  field;  to  serve,  with  treasury  notes  or 
without  them;  to  serve  on  the  public  credit;  and  that  it  can  shoot 
him,  if  he  refuse,  as  a deserter. 

It  can  appropriate  the  property  of  every  citizen,  if  needful  for 
the  purposes  of  war,  and  with  no  security  but  the  credit  of  the  gov- 
ernment. 

It  can  levy  taxes,  not  subject  to  restitution — poll  taxes,  income 
taxes,  land  taxes,  partial  or  general,  equal  or  unequal,  measured 
only  by  the  necessities  of  war — and  this,  though  debtor  and  cred' 
itor  be  involved  by  it  in  common  ruin  and  bankruptcy. 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


431 


The  government  may,  if  essential  to  the  preservation  of  its  ex- 
istence and  to  the  public  defense,  substitute  itself  for  the  creditor, 
and  appropriate  every  debt,  pledging  the  faith  of  the  nation  for  its 
payment. 

These  are  propositions  too  familiar  to  the  court  to  require  argu- 
ment or  authority  in  their  support.  They  have  not  been  denied. 
They  will  not  be  controverted  hereafter,  either  here  or  elsewhere, 
in  the  progress  of  a discussion,  on  the  ultimate  issue  of  which  is 
poised  the  fate  of  the  republic. 

I have  thus  marshaled  for  the  purposes  of  the  present  argument, 
a few  of  the  stern  and  recognized  incidents  of  the  war  power  which 
the  Constitution  has  confided,  with  limitations  immaterial  to  the 
present  issue,  to  the  absolute  discretion  of  Congress,  except  so  far 
as  even  that  discretion  is  controlled  by  the  unlimited  powers  in- 
vested in  the  commander-in-chief  for  the  purposes  of  public  de- 
fense, in  periods  of  civil  convulsion  and  foreign  war. 

And  yet,  when  the  American  Congress  exercises  the  first  right 
of  war^  by  availing  itself  of  the  public  credit  for  the  public  de- 
fense, we  are  told  that  it  is  bound  by  some  constitutional  implica- 
tion, to  provide  a better  currency  for  the  defended  than  for  their 
defenders;  that,  though  the  soldier  and  the  sailor  must  be  content 
with  treasury  notes,  they  shall  not  in  the  hands  of  their  wives  and 
children  be  a tender  to  the  landlord  for  his  rent  or  the  baker  for 
his  bread;  that  the  rights  of  more  than  half  a million  of  citizens  in 
arms  are  overrode  by  the  more  sacred  rights  of  disaffected  grocers 
and  mortgagees  at  home,  guaranteed  to  them,  as  they  claim,  by 
some  unwritten  clause  of  the  Constitution. 

9.  Review  of  the  events  of  the  war. — An  historical 

RETROSPECT. 

It  becomes  material,  in  one  aspect  of  the  discussion,  to  recur  to 
the  circumstances  under  which  the  notes  of  the  United  States  were 
made  a lawful  tender  by  act  of  Congress. 

In  November,  i860,  Mr.  Lincoln  was  elected  to  the  presidency 
by  the  votes  of  nearly  two  millions  of  our  citizens.  More  than  a 
million  of  votes  were  cast  for  Judge  Douglas,  who  was  equally  true 
and  loyal  to  the  Constitution.  One-third  of  the  popular  vote  was 
divided  between  the  two  remaining  candidates,  who,  after  being 
defeated  at  the  polls,  illustrated  the  honor  and  good  faith  of  them- 
selves and  their  adherents,  by  uniting  in  a treasonable  attempt  to 


432 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


subvert  the  government  which  the  people  would  not  permit  them 
to  administer. 

On  the  loth  of  December,  i860,  Mr.  Cobb  retired  from  the 
treasury  department,  and  the  frauds  perpetrated  with  his  connivance, 
in  the  interest  of  the  conspirators,  proved  even  more  serious  than 
had  been  foreshadowed  by  his  apology  six  days  before,  in  his  report 
to  Congress,  for  the  depletion  of  an  already  rifled  treasury. 

Four  days  later.  General  Cass  resigned  the  portfolio  of  the  state 
department,  on  account  of  the  refusal  of  President  Buchanan  to  re- 
inforce Fort  Moultrie,  which  was  then  menaced  by  the  rebels  with 
guns  stolen  with  the  connivance  of  the  Secretary  of  War.  That 
functionary,  though  higher  on  the  list  of  promotion,  could  not  be 
spared  from  his  present  position;  and  accordingly  General -Cass 
was  succeeded  by  Attorney-General  Black,  who,  on  the  20th  of  the 
preceding  month,  had  favored  Mr.  Buchanan  with  an  official  opin- 
ion, announcing  in  effect,  but  with  much  decorous  circumlocution, 
that  the  government  was  constitutionally  impotent  for  its  own  de- 
fense, and  existed  only  by  the  toleration  of  the  South. 

On  the  24th  of  December,  a convention  of  South  Carolina 
adopted  an  ordinance  of  secession,  by  which  it  assumed  to  dissolve 
the  American  Union. 

Two  days  later.  Major  Anderson,  the  Kentuckian  in  command, 
spiked  the  guns  of  Fort  Moultrie,  and  transferred  the  little  band — 
which  represented  there  the  force  of  the  nation — to  the  narrower 
and  more  defensible  limits  of  Fort  Sumter. 

On  the  29th  of  December,  Floyd,  having  purloined  and  trans- 
ferred to  the  confederates  all  the  national  arms  and  munitions  of 
war  which  they  thought  worth  their  acceptance,  and  having  divided 
and  dispersed  the  American  forces  to  suit  the  purposes  of  his  ac- 
complices, resigned  his  position  in  the  Cabinet  to  take  a commission 
in  the  confederate  army,  alleging  as  his  reason  that  the  President 
had  broken  faith  with  the  rebels  by  not  ordering  Major  Anderson 
back  to  Fort  Moultrie,  where  they  could  have  seized  him  more  com 
veniently. 

On  the  8th  of  January,  1861,  President  Buchanan  sent  a mes- 
sage to  Congress,  communicating  so  much  as  he  thought  proper  of 
his  personal  correspondence  with  the  South  Carolina  conspirators; 
announced  that  “we  are  in  the  midst  of  a great  revolution,”  and 
gravely  recommended  to  the  people  of  the  loyal  States  to  yield  to 
the  rebels,  and  conciliate  them  by  a new  appeal  “ to  the  ballot  box.” 

The  other  Cotton  States,  having  in  the  meantime  perfected  their 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


433 


conspiracy — having  possessed  themselves  by  treachery,  by  surprise, 
by  theft  and  by  violence  of  the  treasure,  the  arms  and  the  strong- 
holds of  the  nation — followed  at  the  heels  of  South  Carolina,  and 
adopted  ordinances  of  secession. 

The  rebel  flag  was  raised  by  Mississippi  on  the  9th  of  January, 
1861;  by  Alabama  and  Florida  on  the  nth;  by  Georgia  on  the 
19th,  and  by  Louisiana  on  the  25th  of  January. 

Six  days  afterwards,  at  a convention  held  at  our  own  State 
capitol,  the  memorable  announcement  went  forth  from  high  author- 
ity, as  a response  from  the  North:  “Already  six  States  have  with- 
drawn from  this  confederacy.  Revolution  has  actually  begun.” 

On  the  23d  of  February,  1861,  the  President-elect  made  his  way 
to  the  capitol;  and  the  enemies  of  the  country  continue  to  this  day 
to  reproach  him  for  wearing  the  Scotch  cap  and  cloak  recom- 
mended by  Gen.  Scott,  which  saved  him  from  recognition  by  the 
assassins  who  were  awaiting  his  arrival  at  Baltimore. 

President  Buchanan  was  unfortunately  under  the  influence,  and 
persistently  blind  to  the  purposes  of  those  who  were  in  league  to 
remove  his  successor  and  to  subvert  by  violence  the  government 
each  had  been  chosen  by  the  people  to  administer. 

On  the  4th  of  March,  President  Lincoln  was  inaugurated,  and 
was  saved  again  from  assassination  by  the  forecast  of  Gen.  Scott, 
who  insisted  that  his  predecessor  should  accompany  him  on  his 
way  to  the  capitol,  and  that  the  avenue  should  be  guarded  by  an 
armed  soldiery. 

Three  days  afterwards,  Beauregard,  a former  protege  of  the 
government,  was  put  in  command  of  the  army  of  rebels  who  had 
been  assembled  to  seize  Fort  Sumter. 

On  the  14th  of  April,  that  fortress  fell;  and  if  the  constitutional 
theory  of  our  adversaries  could  be  maintained,  on  that  day  this 
government  fell. 

On  the  15th  of  April,  President  Lincoln  issued  his  proclamation, 
summoning  75,000  men  to  arms,  to  maintain  and  defend  the  Union 
and  the  Constitution. 

On  the  2ist  of  July,  the  national  army  was  defeated  at  Bull 
Run.  On  the  20th  of  August,  Gen.  McClellan  assumed  command 
of  the  army  of  the  Potomac.  From  that  time,  until  long  after  the 
enactment  of  this  law,  the  guns  of  the  rebel  army  were  trained  on 
the  capitol,  and  its  tents  and  watch-fires  within  view  from  its 
cupola. 

At  the  commencement  of  the  then  fiscal  year,  the  entire  aggre- 


434 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


gate  amount  of  gold  and  silver  coin  in  the  country,  north  and 
south,  so  far  as  it  could  be  deduced  from  reliable  statistics,  was 
$243,010,103.  If  your  Honors  should  have  occasion  to  verify  this 
fact,  you  will  find  a statement  on  the  subject  in  detail  in  the  48th 
volume  of  Hunt’s  Merchants’  Magazine,  215,  in  the  number  of  that 
work  issued  in  March,  1863. 

This  was  much  less  than  the  country  needed  to  borrow  for  im- 
mediate use.  Accordingly,  on  the  25th  of  February,  1862,  an  act 
of  Congress  was  passed  to  provide  means  for  the  immediate 
payment  of  the  arrears  due  to  the  army  and  navy,  by  issuing 
$150,000,000  in  United  States  notes,  in  addition  to  the  public 
loans  previously  made  or  authorized,  making  these  notes  a tender 
in  payment  of  debts  due  to  and  from  the  people  and  the  govern- 
ment, and  providing  for  the  funding  of  the  public  debt  and  pay- 
ment of  the  interest  in  coin. 

The  particular  provisions  of  that  act  have  been  brought  to  your 
Honors’  notice  by  my  learned  associate.  I need  only  make  a pass- 
ing allusion  to  the  circumstances  under  which  it  was  enacted. 

It  was  voted  for  within  reach  of  a night  assault  by  100,000 
rebels  in  arms.  The  war  had  been  begun  against  the  pillaged  na- 
tion, under  the  leadership  of  those  who  had  rifled  its  treasury.  It 
had  been  begun  against  an  unarmed  nation,  by  those  who  had  been 
trained  to  the  science  of  war  at  its  expense,  and  who,  after  being 
laden  with  its  honors  and  enriched  by  its  bounty,  banded  together 
as  conspirators  against  its  life. 

The  conspiracy  had  been  well  matured.  At  home  and  abroad 
the  work  was  prepared.  The  courts  of  Europe  had  been  pre- 
occupied by  the  able,  adroit  and  busy  emissaries  of  the  South. 
Every  purchasable  government  press  had  been  suborned  to  the  use 
and  interests  of  the  rebels.  The  North  had  but  one  friend  among 
the  nations  of  the  earth — that  friend  the  Russian  Czar,  exercising 
dominion  over  portions  of  three  continents,  Europe,  Asia  and 
America;  in  sympathy  with  us,  because  we  had  common  enemies; 
but  passive,  because  our  controversy  had  no  relation  to  the  inter- 
ests of  his  dynasty. 

Our  credit  was  undoubted  throughout  Christendom;  but  no  na- 
tion on  earth  had  a motive  to  aid  us  either  with  money,  with  men 
or  with  arms.  Under  these  circumstances  we  had  only  to  rely,  as 
among  monarchies  every  republic  must  rely,  on  the  patriotism,  the 
fidelity  and  the  resources  of  our  own  people.  That  reliance  was 
not  in  vain.  Three-quarters  of  a million  of  men,  untrained  to  arms, 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


435 


interposed  their  breasts  and  their  bayonets  between  the  government 
and  the  public  enemy. 

The  President,  unused  to  the  responsibilities  of  command,  was 
nevertheless  faithful  and  loyal  to  his  trust.  He  needed,  as  the  head 
of  the  nation — what  he  has  hitherto  received,  and  what  he  will  re- 
ceive to  the  end — the  earnest,  constant,  enduring  support  of  every 
cordial  friend  of  the  government.  Congress  coming  fresh  from  the 
people,  was  also  true  and  faithful  to  its  trust.  It  needs  no  other 
vindication  of  its  patriotism,  its  wisdom  and  its  forecast  in  regard 
to  the  enactment  now  in  question,  than  has  been  furnished  by  sub- 
sequent events. 

I pass  over  intermediate  matters  familiar  to  your  Honors,  and 
which  have  already  gone  to  history,  where  your  judgment  is  soon 
to  follow  them. 

10.  Nature  of  the  crisis  which  demanded  the  passage  of 
THE  legal-tender  ACTS. 

Congress  assembled  on  the  ist  of  December,  1862.  The  Presi- 
dent, in  his  message,  communicated  the  fact  that  in  the  fiscal  year 
ending  on  the  30th  of  June,  1862,  the  jear  in  which  the  law  in 
question  was  enacted,  the  disbursements  of  the  government  had 
been  $570,841,700  25,  of  which  $529,692,460  50  had  been  borrowed 
on  the  credit  of  the  government.  The  payment  of  specie  had 
been  suspended,  not  only  by  the  banks,  but  by  the  people.  It  was 
a necessity  of  war,  acquiesced  in  by  the  common  consent  of  the 
nation.  The  President  directed  the  attention  of  Congress  to  inter- 
vening events,  which  had  demonstrated  the  wisdom  and  necessity 
of  the  law  adopted  at  the  previous  session,  and  submitted  for  their 
consideration  the  claims  of  the  people  and  the  government  in  the 
existing  exigencies  of  the  nation. 

After  full  deliberation  and  discussion  in  Congress,  a similar  act 
was  passed,  which  will  be  found  in  the  Statutes  at  Large  for  1863, 
page  709,  chapter  73.  The  act  was  approved  by  the  President, 
and  became  a law  on  the  3d  of  March,  the  last  day  of  the  third 
session  of  the  37th  Congress.  It  was  entitled  “An  act  to  provide 
ways  and  means  for  the  support  of  the  government,”  an  ordinary 
title,  to  which  events  had  given  an  extraordinary  significance. 

The  first  section  authorized  the  Secretary  of  the  Treasury  to 
borrow  $900,000,000  on  bonds  of  the  government,  payable  in  coin, 
at  periods  ranging  from  ten  to  forty  years,  with  interest  semi- 
annually, payable  also  in  coin.  The  second  section  authorized  him 


43G 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


to  issue,  on  the  credit  of  the  United  States,  $400,000,000  of  treas- 
ury notes,  and  $150,000,000  of  United  States  notes,  exchangeable 
for  prior  issues  of  a like  character,  and  to  be  made  a legal  tender 
to  a similar  extent  with  previous  issues.  The  third  section  author- 
ized him,  if  required  by  the  exigencies  of  the  public  service  for  the 
payment  of  the  army  and  navy,  and  other  creditors  of  the  govern- 
ment, to  issue  on  the  credit  of  the  United  States  $150,000,000  of 
United  States  notes,  not  bearing  interest,  which  notes  so  issued 
should  be  lawful  money,  and  a legal  tender  in  payment  of  all  debts, 
public  and  private,  within  the  United  States,  except  for  duties  on 
imports  and  interest  on  the  public  debt. 

Thus,  on  the  3d  of  March,  1863,  by  the  concurrent  and  recorded 
judgment  of  the  popular  and  the  executive  departments  of  the  gov- 
ernment, $1,600,000,000  were  required  to  meet  the  current  obliga- 
tions of  the  nation,  beyond  the  resources  it  anticipated  from  the 
revenues  on  imports,  the  sales  of  the  public  lands,  the  proceeds  of 
the  stamp  acts,  and  the  direct  taxes  imposed  on  the  incomes  and 
industry  of  the  country.  One-third  of  those  bound  to  contribute 
to  the  expenses  of  the  government,  had  already  been  reduced  by 
their  own  rebellion  to  destitution  and  bankruptcy  ; and  the  prop- 
erty remaining  in  their  possession  was  protected  against  federal  de- 
mands by  military  ramparts  and  bayonets.  Three-quarters  of  a 
million  of  loyal  men  were  in  arms  on  the  land,  and  a proportionate 
number  on  the  sea,  to  maintain  the  government  by  force.  All 
must  be  fed,  clothed,  and  supplied  with  the  munitions  of  war. 

Sixteen  hundred  millions  were  to  be  drawn  for  the  exigencies  of 
the  ensuing  year  alone — and  on  the  theory  of  our  adversaries,  this 
amount  was  to  be  drawn  in  coin,  and  not  from  our  entire  popula- 
tion of  31,000,000,  but  from  20,000,000  of  loyal  citizens.  On  their 
theory,  each  soldier,  sailor,  man,  woman,  child,  must  contribute  $80 
in  gold  and  silver,  besides  all  other  State  and  national  burdens,  and 
this  to  maintain  the  government  to  the  ist  of  January,  1864. 

This  was  the  nature  of  the  public  crisis,  which  in  the  judgment 
of  Congress  demanded  the  enactment  of  these  laws.  They  are  pari 
materia,  and  stand  or  fall  together.  The  Supreme  Court  of  the 
United  States  has  already  announced  its  judgment  of  the  perils 
which  overhung  the  people  and  the  government,  by  declaring  on 
our  judicial  records,  simultaneously  with  the  passage  of  one  of  these 
acts,  that  we  were  in  the  crisis  of  the  greatest  civil  war  known  in 
the  history  of  the  human  race.”* 


’ The  Prize  Cases,  2 American  Law  Register,  N.  S.  339. 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


43T 


II..  The  desperate  alternative  forced  upon  Congress. 

The  question  presented  to  Congress  for  decision  was  : Shall  the 
government  be  dissolved  ? The  alternative  was,  the  exercise,  in  a 
period  of  public  war,  of  an  inherent  sovereign  power,  not  prohibited 
by  the  Constitution,  or  a bankrupt  treasury,  a bankrupt  people,  and 
a government  overthrown. 

Two  millions  of  dollars  a day  must  be  paid  out  by  the  govern- 
ment for  the  ordinary  disbursements  of  war.  Its  efficient  arms  had 
been  stolen,  and  it  must  replace  them  from  the  markets  of  Europe. 
It  could  not  borrow  abroad,  from  enemies  who  looked  and  longed 
for  its  destruction.  It  could  not  borrow  at  home  in  gold  and  silver, 
without  draining  the  life-blood  of  commerce,  and  this  by  forced 
loans  involving  universal  bankruptcy.  It  could  not  meet  present 
demands  by  taxation,  for  it  needed  the  money  to  sustain  the  ma- 
chinery of  taxation,  and  one-third  of  those  subject  to  assessment  were 
making  war  upon  the  taxing  power.  It  could  not  wait,  and  it  could 
not  want.  It  might  tax,  but  the  people  could  not  pay.  It  could 
sacrifice  private  property  by  seizure  and  forced  sales,  but  there  was 
not  enough  gold  and  silver  coin  on  the  continent  to  buy  what  the 
government  would  be  compelled  to  sell. 

All  powers  necessary  to  the  execution  of  its  governmental  trusts 
were  expressly  granted  to  Congress  by  the  Constitution.  If  the 
power  to  enact  these  laws  be  incident  to  the  necessity,  it  existed  ; 
for  the  necessity  was  undeniable.  One-third  of  the  nation  was 
using  against  the  other  two-thirds  the  very  power,  the  existence  of 
which  for  the  destruction  of  the  government  was  recognized  and 
defended  by  those  who  denied  its  existence  for  the  purpose  of  gov- 
ernment protection. 

The  alternative  was  plain.  The  government,  to  which  alone 
the  creditor  could  look  for  protection,  must  be  upheld ; must  up- 
hold the  Constitution  and  the  laws ; must  sustain  the  people,  the 
debtor,  the  creditor,  the  common  rights  and  common  existence,  by 
substituting  the  public  credit  and  the  plighted  faith  of  the  nation, 
for  the  gold  and  silver  coinage,  which  had  formed  the  theoretical, 
but  at  no  portion  of  our  history  the  practical  currency  of  the 
country. 

All  individual  rights  of  life,  liberty  and  property,  are  subordinate 
to  the  right  of  national  existence.  Rights  of  propei'ty  exist  only 
through  and  under  government.  When  the  government  itself  is  in 
peril  of  subversion  by  war,  the  Constitution  has  wisely  left  its  arm 


4:38 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


of  protecting  power  bare  and  free.  When  all  rights  are  endangered, 
it  is  better  that  some  be  suspended,  than  that  all  should  perish. 
The  right  of  the  government  in  the  maintenance  of  its  sovereignty, 
not  only  to  kill  its  enemies  but  to  compel  its  citizens  to  die  in  its 
defense,  is  conceded  by  those  who  deny  it  the  power  to  maintain 
navies,  support  armies,  suppress  insurrections,  provide  for  the  com- 
mon defense,  and  wage  war  for  the  maintenance  of  its  own  ex- 
istence. 

The  right  of  Congress  to  make  United  States  notes  a legal 
tender,  in  the  exercise  of  the  specific  powers  to  levy  taxes,  and  to 
borrow,  to  coin  and  to  regulate  the  value  of  money,  has  been  so 
fully  considered  in  the  numerous  briefs  and  arguments  of  my 
learned  associates,  and  so  ably  discussed  in  the  opinions  delivered 
by  the  Judges  in  the  Seventh  Judicial  District,  that  I shall  feel  at 
liberty  to  confine  myself  to  the  single  question  of  the  validity  of  the 
law,  under  the  general  authority  vested  in  Congress  by  the  last  clause 
in  the  eighth  section  of  the  first  article  of  the  Constitution. 

12.  The  power  to  pass  the  legal-tender  acts  exists  by 

EXPRESS  GRANT,  AND  BY  NECESSARY  IMPLICATION. 

The  people,  after  declaring  that  Congress  shall  have  certain 
specific  powers,  conclude  the  enumeration  by  an  express  grant  of 
the  broad  and  plenary  power  : “To  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing 
powers  and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or  officer 
thereof.” 

So  clearly  does  the  very  idea  of  government  presuppose  the 
existence  of  power  in  some  of  its  departments,  to  do  such  acts  as 
may  be  needful  to  fulfill  its  trusts  and  maintain  its  authority,  that 
some  of  our  earlier  statesmen  were  of  opinion  that  Congress  would 
have  possessed  it,  even  without  the  specific  grant,  as  a necessary 
and  inherent ' right  of  sovereignty — and  that  it,  therefore,  added 
nothing  more  than  would  have  been  plainly  implied,  even  in  the 
absence  of  such  a provision.  Those  who  would  use  the  Constitu- 
tion as  a weapon  with  which  to  cleave  down  the  government,  are 
fond  of  quoting  these  opinions,  as  authority  for  expunging  this 
clause  from  the  instrument — while  they  sturdily  reject  the  postulate 
that  the  power  would  have  existed  by  necessary  implication,  even 
without  the  grant.  They  are  not  at  liberty  to  ignore  at  once  the 
clause  and  the  implication.  It  is  a very  easy,  but  a very  illogical 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


439 


process,  to  strike  out  the  express  grant,  on  the  ground  that  the 
power  was  inherent  in  Congress,  and  then  to  deny  the  power  on  the 
ground  of  the  absence  of  an  express  grant. 

The  provision  stands.  It  can  neither  be  expunged  nor  ignored. 
Primus  hiter pares ^ it  is  second  in  authority  to  no  other  provision 
of  the  Constitution.  Events  have  demonstrated  the  wisdom  of 
those  who  framed  it.  Ordinary  powers  were  enumerated,  because 
they  were  capable  of  enumeration.  Other  powers  were  granted,  to 
be  exercised  only  in  case  of  necessity.  As  the  varying  necessities 
of  national  existence  could  not  be  foreseen,  these  did  not  admit  of 
enumeration.  As  some  department  of  the  government  must  judge 
of  the  existence  of  the  necessity,  which  was  the  sole  condition  of 
the  power,  it  was  committed  to  the  concurrent  judgment  of  the 
representatives  of  the  people,  and  the  representatives  of  the  States, 
subject  to  the  check  of  the  presidential  veto. 

The  law  in  question  is  upheld  by  this  provision  of  the  Consti- 
tution, if,  in  the  existing  exigencies  of  the  nation,  its  enactment  was 
“ necessary  and  proper  for  carrying  into  execution  ” the  powers 
vested  in  Congress,  ‘‘to  lay  and  collect  taxes” — “to  borrow  money 
on  the  credit  of  the  United  States” — “to  regulate  the  value”  of 
money — “to  provide  and  maintain  a navy” — “to  raise  and  support 
armies  “ to  suppress  insurrection  ” — “ to  pay  the  debts  and  pro- 
vide for  the  common  defense  and  general  welfare  of  the  United 
States.” 

If  this  legislation  was  necessary  and  proper  to  enable  Congress 
to  fulfill  these  high  trusts,  the  law  must  stand  or  the  Constitution 
must  fall 

13.  Postulates  which  those  who  seek  to  nullify  the  legal- 
tender  ACTS  MUST  ESTABLISH. 

When  our  adversaries  invoke  the  subversion  of  these  acts  of 
Congress  by  the  judiciary,  they  are  charged  with  the  burden  of 
maintaining  one  of  two  propositions. 

The  first  is,  that  there  is  no  such  necessity  as  these  laws  pre- 
suppose and  recognize  : that  there  is  gold  and  silver  coin  enough 
in  the  loyal  States  to  fulfill  all  private  obligations,  and  with  the 
surplus  to  conquer  ten  millions  of  men  who  can  command  gold  in 
the  markets  of  Europe,  closed  to  us  ; who  can  issue  hundreds  of 
millions  of  confederate  scrip  for  every  million  of  Northern  coin, 
and  who  recognize  and  pay  no  debts  among  themselves,  except  by 
pledging  the  faith  of  a league  of  rebellious  States. 


uo 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


As  to  this,  I need  only  say  it  is  a purely  political  question,  com- 
mitted to  the  judgment  of  another  department  of  the  government, 
whose  decision  on  this  state  of  facts  is  not  subject  here  to  review. 
The  Constitution  having  intrusted  Congress  with  the  duty  of  de- 
termining what  may  be  needful,  in  the  varying  exigencies  of  public 
necessity,  to  carry  into  effect  the  powers  with  which  it  is  vested — 
its  judgment,  in  good  faith,  and  in  its  own  sphere  of  action,  is  ab- 
solute and  subject  to  no  review.  This  proposition  is  too  clearly 
settled  by  authority  to  require  elucidation  by  argument.  I will  ask 
the  court  to  note  a reference  to  a few  additional  cases  not  cited  in 
the  printed  points.’ 

Failing  in  this,  our  adversaries  must  maintain  the  proposition, 
that,  conceding  these  laws,  by  which  the  notes  of  the  United 
States  are  declared  a legal  tender,  to  be  “ necessary  and  proper  for 
carrying  into  execution  ” the  specific  powers  vested  in  Congress — 
conceding  them  to  be  within  the  very  terms  of  the  general  grant  of 
power  at  the  close  of  the  eighth  section — they  are  still  in  conflict 
with  the  Constitution,  because  they  are  not  specially  authorized 
elsewhere  in  the  same  instrument,  within  the  ordinary  and  enumer- 
ated powers  of  Congress,  to  be  exercised  irrespective  of  any  public 
necessity. 

They  do  not  advance  this  proposition  in  terms ; and  yet,  unless 
they  can  establish  that  we  are  powerless  to  pass  these  laws — though 
they  are  demanded  for  the  common  defense,  as  an  iron  necessity  of 
war,  to  avert  the  downfall  of  the  government;  though  this  necessity 
is  adjudged  by  Congress,  with  the  concurrence  of  the  President ; 
though  the  fact  exists,  and  is  known  of  all  men  ; though  without 
the  exercise  of  this  power  the  Constitution  itself  is  paralyzed — we 
submit  that  our  opponents  have  not  gained  a stand-point,  from 
which  they  can  call  on  the  courts  to  fulfill  their  trust  by  scuttling 
the  national  ship  and  going  down  with  the  wreck. 

As  the  means  adopted  by  Congress  were  appropriate  to  the  re- 
quired ends,  and  as  subsequent  events  have  demonstrated  that  they 
precisely  met  the  public  necessity  to  which  all  other  remedies  were 
inadequate,  the  onus  is  upon  those  who  seek  to  nullify  these  laws  to 
establish  that  the  means  resorted  to  were  plainly  excluded  by  the 
Constitution.  In  the  language  of  Chief  Justice  Marshall,  those 
who  contend  that  the  government  “ may  not  select  any  appropriate 

^ The  Prize  Cases,  2 Am.  Law  Register,  N.  S.  335;  United  States  v.  Pro- 
basco,  Ib.  419,  430 ; McCulloch  v.  State  of  Maryland,  4 Wheat.  316,  422  ; 
Wheaton’s  Life  of  Pinkney,  561  ; Martin  v.  Mott,  12  Wheat.  31. 


THE  METllOPOLITAN  BANK  v.  VAN  DYCK. 


441 


means — that  one  particular  mode  of  effecting  the  object  is  ex- 
cluded— must  take  upon  themselves  the  burden  of  establishing  the 
exception.”  ^ 

14.  The  power  to  create  a legal  tender  existed  prior  to 

THE  ADOPTION  OF  THE  CONSTITUTION,  AND  WAS  EITHER 

VESTED  IN  Congress  or  extinguished. 

The  conceded  absence  of  any  express  prohibition  on  this  sub- 
ject, has  peculiar  force  and  significance.  The  power  of  making 
the  paper  of  the  government  a legal  tender,  existed  and  was  exer- 
cised in  every  State,  from  the  Declaration  of  Independence  to  the 
adoption  of  the  federal  Constitution.  In  the  partition  then  made 
of  governmental  powers,  this,  being  one  essential  for  national  pur- 
poses, would  appropriately  be  conferred  upon  the  national  Con- 
gress. It  was  vested  in  the  Congress  of  the  United  States,  or  it 
was  vested  nowhere.  It  was  not  one  of  the  powers  “ reserved  to 
the  States  respectively,  or  to  the  people  ” by  tenth  article  of  the 
amendments  to  the  Constitution.  It  was  not  reserved  to  the  States, 
for  they  were  expressly  prohibited  from  its  exercise.  It  was  not  re- 
served to  the  people,  for  it  was  not  personal  and  popular  in  its  na- 
ture. It  was  a high  governmental  power — a known  and  recognized 
attribute  of  national  sovereignty.  It  was  either  committed  to  Con- 
gress, or  annihilated.  There  is  no  presumption  in  favor  of  the  vol- 
untary and  deliberate  extinguishment  of  a sovereign  power,  essen- 
tial to  the  authority  and  existence  of  every  nation,  which  would 
compete  on  equal  terms  with  the  other  nations  of  the  earth. 

15.  The  inquiry  whether  self-preservation  is  an  inher- 

ent RIGHT  RISING  ABOVE  CONSTITUTIONAL  LIM- 
ITATIONS, DOES  NOT  ARISE. 

The  federal  government,  in  its  national  relations,  is  invested 
with  the  powers  of  sovereignty.  If  the  Constitution  had  failed  to 
invest  it  with  these,  it  would,  in  the  language  of  Chief  Justice 
Marshall,  have  been  only  “a  splendid  bauble.”  Mere  forms  are 
nothing.  Substance  is  everything.  It  was  said  by  Napoleon,  that 
“ a throne  is  a mere  block  of  wood,  covered  with  velvet.”  A na- 
tional Constitution,  which  failed  to  organize  a nation,  would  be 
even  more  unmeaning  than  the  throne  stripped  of  its  covering. 

In  the  special  message  of  President  Monroe,  communicated  to 


* 4 Wheaton,  410. 


442 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


Congress  on  the  4th  of  May,  1822,  after  giving  the  history  of  the 
Constitution,  he  proceeds  to  say  : “ Thus  were  two  separate  and  in- 
dependent governments  established  over  our  Union — one  for  local 
purposes,  over  each  State,  by  the  people  of  the  State ; the  other 
for  national  purposes,  by  the  people  of  the  United  States.  The 
whole  power  of  the  people  on  the  representative  principle  is  di- 
vided between  them.  The  State  governments  are  independent  of 
each  other,  and  to  the  extent  of  their  powers  are  complete  sover- 
eignties. The  national  government  begins  where  the  State  gov- 
ernments terminate,  except  in  some  instances  where  there  is  a con- 
current jurisdiction  between  them.  This  government  is  also,  to 
the  extent  of  its  powers,  a complete  sovereignty."*  On  the  ques- 
tion of  the  supremacy  and  sovereignty  of  the  federal  government, 
within  the  scope  of  its  powers  in  all  matters  of  national  concern,  I 
beg  leave  to  refer  the  Court  to  the  opinions  of  Chief  Justice  Mar- 
shall, in  the  United  States  Bank  case,  and  of  Mr.  Justice  Nelson, 
in  the  Tax  case.* 

We  do  not  claim  that  the  courts  should,  in  an  iota,  transcend 
the  limits  of  the  Constitution ; but  simply  that  they  should  deal 
with  it  fairly,  with  a view  to  its  avowed  objects  and  ends. 

The  case  has  not  yet  arisen — I trust  it  may  never  arise — when 
the  judiciary  may  be  compelled  to  pass  on  the  question  of  the  ulti- 
mate power  of  all  governments  in  maintaining  their  own  existence. 

It  was  in  reference  to  such  a question,  that  Cromwell,  in  1656, 
speaking  in  behalf  of  England,  addressed  language  to  the  British 
Parliament,  which  has  been  deemed  worthy  of  a place  in  history  : 

“ If  nothing  should  ever  be  done,  but  what  is  ^according  to  law* 
the  throat  of  the  nation  may  be  cut  while  we  send  for  some  one  to 
make  a law.  Therefore,  certainly  it  is  a pitiful  beastly  notion  to 
think,  though  it  be  for  ordinary  government  to  live  by  law  and  rule, 
yet  if  a government  in  extraordinary  circumstances  go  beyond  the 
law,  even  for  self-preservation,  it  is  to  be  clamored  at,  and  blattered 
at.  When  matters  of  necessity  come,  then,  without  guilt,  extraor- 
dinary remedies  may  be  applied.  * * And  I must  say  I do  not 

know  one  action  of  this  government — no,  not  one — but  it  hath  been 
in  order  to  the  peace  and  safety  of  this  nation." 

If,  in  the  progress  of  events  in  revolutionary  times,  that  ques- 
tion should  ever  arise,  the  courts  will  have  occasion  to  weigh  the 

* 2 Statesman’s  Manual,  497. 

^ 4 Wheat.  405  ; 25  Howard’s  Pr.  R.  14,  16, 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


443 


views  of  an  eminent  southern  civilian,  submitted  as  the  result  of 
calm  study  and  a mature  reflection,  in  a posthumous  publication 
on  the  principles  of  government.  Mr.  Calhoun  says  : “ Exigen- 
cies will  occur,  in  which  the  entire  powers  and  resources  of  the 
community  will  be  needed  to  defend  its  existence.  When  this  is 
at  stake,  every  other  consideration  must  yield  to  it.  Self-preserva- 
tion is  the  supreme  law,  as  well  with  communities  as  individuals.”  * 
If  this  principle  of  ultimate  governmental  power  has  indeed  a foot- 
hold in  the  polity  of  nations,  it  could  find  no  exigency  in  which  it 
would  apply  with  greater  force,  than  immediate  peril  of  national 
dissolution  in  the  throes  of  intestine  war.  The  declaration  of  Vat- 
tel,  that  “ a civil  war  breaks  the  bands  of  society  and  government, 
or  at  least  suspends  their  force  and  effect,”  is  with  approval  cited 
in  the  same  opinion  of  the  Supreme  Court  of  the  United  States, 
which,  in  March  last,  characterized  this  as  “ the  greatest  civil  war 
known  in  the  history  of  the  human  race.’”* 

I have  referred  to  this  mooted  question  of  the  inherent  govern- 
mental right  of  self-defense,  rising  in  great  exigencies  above  all 
constitutional  limitations,  not  with  a view  of  discussing  it,  or  ex- 
pressing any  opinion  as  to  its  soundness,  but  for  the  sole  purpose 
of  distinguishing  it  from  the  position  we  maintain,  and  with  which 
our  opponents  seem  to  confound  it. 

We  claim  that  Congress  was  authorized  by  express  constitu- 
tional grant,  to  exercise  the  powers  in  question,  when  demanded  by 
governmental  necessity,  and  that  the  means  it  employed,  having 
been  not  only  appropriate  but  efficacious  to  meet  the  necessity,  its 
decision  on  these  questions,  purely  political  in  their  nature,  is  not 
subject  to  review  and  reversal  in  any  judicial  tribunal,  but  binds 
the  whole  American  people,  by  whose  authority  and  in  whose  name 
it  was  pronounced. 

i6.  Meaning  of  the  terms  “legal  tender”  and  “money” 

CONSIDERED  AND  DISTINGUISHED, ThE  SUBJECT 

OF  LEGAL  TENDER. 

The  substantial  issue  is  on  the  right  to  make  the  notes  of  the 
United  States  a legal  tender.  A minor  issue  is  raised  as  to  the 
power  of  Congress  to  declare  them  to  be  mo7iey.  That  is  a ques- 
tion of  very  trivial  moment,  as  without  such  a declaration  they  are 

* I Calhoun’s  Works,  p.  lo. 

^ The  Prize  Cases,  2 Am.  Law  Reg.  N.  S.  337,  339. 


444 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


money  by  the  common  recognition  of  all  civilized  communities/ 
If  Congress  had  failed  to  make  the  declaration,  the  omission  would 
be  quite  immaterial,  as  the  Supreme  Court  of  the  United  States 
had  held  treasury  notes  to  be  money,  even  before  they  were  made 
a legal  tender/ 

But  on  the  great  question  in  the  case,  whether  the  government 
can  make  this  money  a legal  tender,  your  Honors  will  not  fail  to 
observe  that  the  very  term  ^Uegal  tender  ” imports,  that  the  sub- 
ject is  one  by  the  common  understanding  of  mankind,  belonging  in 
every  sovereignty  to  the  law-making  power.  It  has  been  recog- 
nized as  such  in  every  civilized  nation.  Gold  and  silver  have  been 
a legal  tender  with  us.  Not  so  in  Great  Britain.  There,  except 
for  small  sums,  it  is  gold  coin  or  notes  of  the  Bank  of  England. 
Not  so  in  France.  There  it  is  silver  coin — and  government  paper 
in  periods  of  public  exigency. 

Our  first  government  coinage  was  copper;  of  which  300  tons 
were  converted  into  money,  at  the  mint,  during  the  secretaryship 
of  General  Hamilton. 

Doubtless,  gold  and  silver,  and  government  paper,  have  been 
generally  preferred  by  the  law-making  powers  of  the  various  mod- 
ern nations.  That  this  was  not  always  so,  even  with  them,  is  illus- 
trated by  the  fact  that  we  have  the  record  in  British  history,  of  the 
time  when  a white  woman  was  money,  and  when  a fair-haired 
Saxon  slave  boy  was  a medium  of  commercial  exchange,  and  the 
subject  of  tender  in  payment  of  civil  debts;  and  it  is  a curious  feat- 
ure of  English  History,  alluded  to  by  Macaulay,  that  there  is  no 
record  to  be  found  in  the  Statutes  at  Large,  to  this  day,  of  the 
abolition  in  that  country  of  the  institution  of  human  slavery. 

Whatever,  in  any  country,  may  happen  to  be  for  the  time  the 
recognized  medium  of  commercial  exchange,  whether  gold,  silver, 
or  government  paper,  it  derives  its  character  as  legal  tender,  not 
from  the  material  of  which  it  is  composed,  but  from  the  imprint  of 
the  law-making  or  sovereign  power.  I may  have  a chest  full  of 
gold  bars,  but,  without  the  stamp  of  government  authority,  it  is  not 
a legal  tender  in  payment  of  a debt  for  a loaf  of  bread. 

When  a penny  of  Caesar  was  brought  by  a disciple  to  one  wiser 

^ Wharton’s  Law  Lexicon;  Burrill’s  Law  Dictionary;  Webster’s  and  Worces- 
ter’s Dictionaries;  McCulloch’s  Commercial  Dictionary,  title  Money;  Rees’  Cy- 
clopedia, title  Coin;  4 Webster’s  Works,  339;  Miller  v.  Race,  i Sorrow’s  R. 

452. 

^ United  States  v.  Morgan,  ii  Howard,  160:  Woodbury,  J. 


TilE  METROPOLITAN  BANK  v.  VAN  DYCK. 


445 


than  man,  the  inquiry  he  deemed  appropriate  was,  not  what  metal 
is  this,  but,  “ whose  image  and  superscription  is  this  ? ” It  was  the 
recognition  by  the  king  of  kings,  of  the  authority  of  human  laws, 
and  the  stamp  of  national  sovereignty. 

17.  All  the  attributes  of  sovereignty  presumed  to  exist, 

TILL  THOSE  WHO  DENY  IT  ESTABLISH  THE  CONTRARY. 

Dealing  then,  as  we  are,  with  a recognized  attribute  in  every 
nation  of  the  law-making  power,  we  are  entitled  to  presume  its  ex- 
istence, until  those  who  deny  it  can  establish,  with  irresistible 
clearness,  its  annihilation.  It  must  be  shown  to  be  affirmatively 
excluded,  under  all  circumstances,  in  all  exigencies,  or  it  will  be 
deemed  to  be  embraced  in  a Constitution  designed  to  distribute  and 
not  to  destroy  the  attributes  of  representative  sovereignty. 

In  every  nation,  all  the  legitimate  powers  of  government  are 
lodged  in  some  of  its  various  departments,  by  the  necessity  of 
social  and  national  existence.  By  the  law  of  human  imperfection, 
no  Constitution  ever  devised  by  man,  contained  a full  bill  of  partic- 
ulars of  all  governmental  powers.  But  this  proves,  not  the  absence 
of  the  powers,  but  the  imperfection  of  constitutional  enumeration 
and  forecast. 

As  this  power  to  make  laws  for  upholding  the  nation  is  neither 
in  the  States  nor  the  executive,  it  is  in  the  people,  or  the  Congress 
to  which  they  have  deputed  authority,  to  make  laws  for  carrying 
into  execution  all  powers  belonging  to  or  inherent  in  the  whole 
body  of  the  government. 

It  is  to  be  remembered  that  the  Constitution  was  framed  with 
reference  to  perpetuity;  to  all  the  exigencies  of  human  affairs  in 
the  future  vicissitudes  of  the  race.  Its  general  powers  were 
granted  in  terms  sufficiently  broad  and  comprehensive  to  cover 
those  cases,  certain  to  arise,  but  which  no  human  foresight  could 
anticipate  and  provide  for  in  detail.  The  establishment  of  a gov- 
ernment with  power  to  perpetuate  and  maintain  itself,  was  the 
primary  purpose  of  the  Constitution;  as  the  want  of  such  power 
was  the  primary  mischief  which  led  to  its  adoption. 

In  the  case  of  McCulloch  v.  The  State  of  Maryland,  Chief 
Justice  Marshall,  in  the  most  memorable  judicial  opinion  which  il- 
lumines the  annals  of  American  jurisprudence,  established  immu- 
tably the  principles  of  construction  which  control  the  judicial 
department  of  the  government  in  expounding  the  Constitution.  It 


44G 


ARGUMENT  OF  JOHN  K.  PORTER  IN 


was  of  that  unanimous  decision  of  the  ultimate  tribunal  of  the  na 
tion  that  William  Pinkney  said,  he  saw  in  it  “ a pledge  of  the  im 
mortality  of  the  Union.”  Your  Honors  will  have  occasion  to  recui* 
to  the  opinion  anew,  and  without  pausing  to  follow  the  train  of 
that  luminous  argument,  I desire  only  to  call  the  attention  of  the 
court  to  one  or  two  brief  passages  which  relate  to  the  particular 
clause  of  the  Constitution  empowering  Congress  to  make  all  laws 
which  shall  be  necessary  and  proper  to  carry  into  execution  the 
powers  of  the  government.  “ The  subject  is,  the  execution  of 
those  great  powers  on  which  the  welfare  of  a nation  essentially  de- 
pends. It  must  have  been  the  intention  of  those  who  gave  these 
powers  to  insure,  as  far  as  human  prudence  could  insure,  their 
beneficial  execution.  This  could  not  be  done  by  confining  the 
choice  of  means  to  such  narrow  limits  as  not  to  leave  it  in  the 
power  of  Congress  to  adopt  any  which  might  be  appropriate,  and 
which  were  conducive  to  the  end.  This  provision  is  made  in  a 
Constitution  intended  to  indure  for  ages  to  come,  and,  consequent- 
ly, to  be  adapted  to  the  various  crises  of  human  affairs.  To  have 
prescribed  the  means  by  which  government  should,  in  all  future 
time,  execute  its  powers,  would  have  been  to  change,  entirely,  the 
character  of  the  instrument,  and  give  it  the  properties  of  a legal 
code.  It  would  have  been  an  unwise  attempt  to  provide,  by  im- 
mutable rules,  for  exigencies  which,  if  foreseen  at  all,  must  have 
been  seen  dimly,  and  which  can  be  best  provided  for  as  they  occur. 
To  have  declared  that  the  best  means  shall  not  be  used,  but  those 
alone  without  which  the  power  given  would  be  nugatory,  would 
have  been  to  deprive  the  legislature  of  the  capacity  to  avail  itself 
of  experience,  to  exercise  its  reason,  and  to  accommodate  its  legis- 
lation to  circumstances.  If  we  apply  this  principle  of  construction 
to  any  of  the  powers  of  the  government,  we  shall  find  it  so  per- 
nicious in  its  operation  that  we  shall  be  compelled  to  discard  it. 

“ We  admit,  as  all  must  admit,  that  the  powers  of  the  govern- 
ment are  limited,  and  that  its  limits  are  not  to  be  transcended.  But 
we  think  the  sound  construction  of  the  Constitution  must  allow  to 
the  national  legislature  that  discretion,  with  respect  to  the  means 
by  which  the  powers  it  confers  are  to  be  carried  into  execution, 
which  will  enable  that  body  to  perform  the  high  duties  assigned  to 
it,  in  the  manner  most  beneficial  to  the  people.  Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to  that 


THE  METROPOLITAN  BANK  v.  VAN  DYCK. 


447 


end,  which  are  not  prohibited,  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional.”  ' 

We  submit,  that  upon  the  principles  settled  by  this  decision,  the 
laws  in  question  are  plainly  within  the  powers  expressly  vested  in 
Congress  by  the  Constitution.  If  the  question  were  even  one  of 
doubt — one  on  which,  in  the  language  of  Chief  Justice  Marshall, 
“ human  reason  might  pause,  and  the  human  judgment  be  sus- 
pended”— you  would  not  on  such  an  issue,  bring  the  judiciary  in 
collision  with  the  other  two  departments  of  the  government,  but 
would  solve  the  question,  by  giving  your  country  the  benefit  of  the 
doubt.  Even  in  such  a case,  the  court  would  peremptorily  refuse, 
in  the  language  of  Justice  Grier,  “to  cripple  the  arm  of  the  gov- 
ernment, and  paralyze  its  powers  by  subtle  definitions  and  ingen- 
ious sophisms.”  ^ 

The  question  is,  not  how  three  members  of  the  convention 
which  framed  the  Constitution  were  induced  to  propose  it  to  the 
people — but  what  was  the  intent  evinced  by  the  people  in  its  adop- 
tion ? The  inquiry  is,  how  would  it  have  been  read  by  Washing- 
ton, Hamilton,  and  Madison,  in  the  light  of  the  events  now  trans- 
piring— which  have  developed  the  necessity  and  wisdom  of  these 
general  grants  of  power.  As  George  Mason  said  to  John  C.  Cal- 
houn, “ the  Constitution  has  proved  to  be  wiser  than  the  men  who 
made  it.” 

President  Madison,  in  his  annual  message  of  December  5,  1815, 
after  the  close  of  the  war  with  Great  Britain,  introduced  a passage, 
which  leaves  no  doubt  how  he  would  have  solved  the  question,  in  a 
national  exigency  like  that  in  which  these  laws  were  passed. 

“ The  absence  of  the  precious  metals  will,  it  is  believed,  be  a 
temporary  evil ; but  until  they  can  again  be  rendered  the  general 
medium  of  exchange,  it  devolves  on  the  wisdom  of  Congress  to 
provide  a substitute  which  shall  equally  engage  the  confidence  and 
accommodate  the  wants  of  the  citizens  throughout  the  Union.  If 
the  operation  of  the  State  banks  cannot  produce  this  result,  the 
probable  operation  of  a national  bank  will  merit  consideration ; 
and,  if  neither  of  these  expedients  be  deemed  effectual,  it  may  be 
necessary  to  ascertain  the  terms  upon  which  the  notes  of  the  gov- 
vernment,  no  longer  required  as  an  instrument  of  credit,  shall  be 

* 4 Wheaton,  415,  421. 

' 2 American  Law  Register,  N.  S.  339. 


448  ARGUMENT  IN  METROPOLITAN  BANK  v.  VAN  DYCK. 

issued  upon  motives  of  general  policy  as  a common  medium  of  cir- 
culation.^ 

It  is  to  be  remembered,  too,  that  this  is  not  an  issue  between 
the  States  and  the  nation — between  two  clashing  sovereignties — but 
simply  a question  whether  the  power  we  contend  for  has  been  an- 
nihilated, or  whether  it  exists  in  the  federal  government  for  the 
common  protection  of  the  people  and  the  States.  We  submit  that, 
in  determining  this  issue,  the  Constitution  is  to  be  read  as  an  ordi- 
nance of  sovereignty,  by  the  people  of  a continent,  for  the  main- 
tenance of  public  law  and  liberty,  and  the  defense  of  themselves 
and  their  posterity.  It  is  also  to  be  remembered  that  the  para- 
mount duty  of  every  citizen,  every  officer,  every  judge.  State  and 
federal,  is  to  uphold  the  government  and  defend  the  Constitution. 
Especially  is  this  our  duty  when  the  issue  presented  is,  whether  the 
Constitution,  adopted  by  the  people  for  their  protection,  shall  be  so 
wrested  from  its  objects  as  to  inure  only  to  the  benefit  of  the  pub- 
lic enemy.  It  happens,  by  a singular  coincidence,  that  the  appeal 
to  your  Honors,  to  declare  the  government  impotent  for  its  own  de- 
fense, is  made  at  a time  when  the  heels  of  the  rebel  soldiery  are 
polluting  the  soil  of  a free  State,  between  the  capitol  of  New  York, 
in  which  we  hold  our  deliberations,  and  the  capitol  of  the  nation, 
where  final  judgment  is  to  be  pronounced. 

On  the  theory  we  maintain,  the  Constitution  was  designed  as  a 
citadel  to  secure  public  liberty  and  repose.  On  the  theory  of  our 
adversaries,  it  was  to  serve  as  a grave,  in  which  sovereignty  should 
be  buried  alive,  to  linger  only  until  life  should  be  extinguished  by 
suffocation. 

pluribus  unum  ” is  not  a mere  rhetorical  phrase,  but  the  terse 
record  of  the  philosophy  of  our  system  of  government — a stumb- 
ling-block only  to  those  who  reject  even  the  mathematical  postulate 
that  the  whole  is  greater  than  either  of  its  parts.  The  effect  of 
yielding  to  the  views  of  these  tenacious  friends  of  the  Constitution, 
would  be  to  relieve  them  and  us  from  its  burdens  and  its  protection. 
It  would  be  to  deliver  over  the  government  to  its  enemies,  “ mon- 
strum ingens — cui  lu7nen  ademptum''  — more,  with  its  inherent 
force  and  its  constitutional  power  of  self-defense,  bound  to  helpless- 
ness with  cords  spun  from  its  own  fibre. 


^ I Statesman’s  Manual,  330. 


ARGUMENT  OF  WILLIAM  A.  BEACH 


In  Defense  of  Samuel  North  and  Others,  Charged  with 
Tampering  with  Soldiers’  Votes. 

BEFORE  A MILITARY  COMMISSION  AT  WASHINGTON,  D.  C., 
FEBRUARY,  1865. 


Analysis  of  Mr.  Beach’s  Argument. 


1.  Powers  assumed  by  military  courts. 

2.  The  action  of  the  court  cannot  be  justi- 

fied on  the  plea  of  military  necessity. 

3.  A military  commission  has  authority  to 

punish  only  military  offenses. 

4.  General  observations  as  to  the  nature  of 

crime,  and  the  philosophy  of  punish- 
ment. 

5.  The  authority  of  the  court  extends  only 

to  violations  of  military  law. 

6.  The  charges  against  defendants  do  not 

embrace  a military  crime. 

7.  The  charges  not  sustained  by  the  spec- 

ifications. 

8.  Civil  offenses  not  within  the  jurisdiction 

of  the  court. 

9.  No  authority  conferred  upon  the  court 

to  try  civil  offenses. 

10.  Military  law  defined. 

11.  Ruinous  consequences  which  must  fol- 

low an  assumption  of  unlawful  au- 
thority. 

12.  Defendants  entitled  to  an  acquittal. 

13.  Distinction  between  martial  law  and 

military  law. — Martial  law  not  appli- 
cable. 


14.  Rule  as  to  the  existence  of  martial  law. 

15.  Consequences  of  the  doctrine  advanced 

by  the  judge  advocate. 

16.  Constitutional  rights  cannot  be  sus- 

pended. 

17.  The  doctrine  of  suspending  the  Consti- 

tution novel  and  startling. 

18.  Provisions  of  the  Constitution  sufficient 

for  every  political  possibility. 

19.  All  constitutional  authority  clearly  de- 

fined. 

20.  Case  of  Vallandigham  distinguished. 

21.  The  offenses  charged  not  hostile  to  the 

military  operations  of  the  govern- 
ment. 

22.  Whether  defendants  can  be  punished 

under  the  State  law  immaterial. 

23.  Duty  of  government  to  protect  its 

soldiers  considered. 

24.  Jurisdiction  of  the  court  must  arise  from 

positive  law 

25.  Questions  of  fact  involved. 

26.  Private  character  of  Colonel  North. 

27.  Interest  and  importance  of  the  issues  in 

the  case. 


Samuel  North,  Levi  Cohn,  Marvin  M.  Jones,  and  two  others,  were  tried  be- 
fore a military  commission,  convened  at  the  city  of  Washington  in  February, 
1865,  charged  with  having  falsely  and  fraudulently  signed  and  issued  election 
blanks,  purporting  to  have  been  sent  by  soldiers  in  the  field,  to  their  homes  in 
the  State  of  New  York;  and  for  attempting  to  cast  the  votes  of  absent  soldiers, 
in  fraud  of  the  rights  of  the  true  elector.  The  accusation  was  rendered  doubly 
criminal  and  detestable,  in  view  of  the  events  transpiring  at  the  time,  and  ex- 

[449J 


29 


450 


ARGUMENT  OF  WILLIAM  A.  BEA.CH 


cited  popular  wrath  and  indignation  everywhere.  It  was  during  the  war  of  the 
rebellion,  at  the  critical  period,  when  it  became  necessary  to  choose  a President 
of  the  United  States.  In  the  dark  and  perilous  hours  of  that  great  conflict, 
which  was  to  decide  the  existence  of  our  institutions,  any  attempt  to  interfere 
with  the  political  rights  of  our  country’s  defenders  could  not  be  tolerated  or 
excused  upon  any  pretext. 

The  circumstances  surrounding  the  case  were  as  follows : The  legislature  of 
the  State  of  New  York,  on  the  2ist  of  April,  1864,  passed  an  act  to  enable 
qualified  electors  of  the  State,  absent  therefrom,  and  in  the  military  service  of 
the  United  States  and  navy  thereof,  to  vote  (Laws  1864,  ch.  253).  The  soldier 
was  required,  by  the  provisions  of  the  act,  to  authorize  any  elector  of  the  town 
or  city  where  he  resided  to  cast  his  vote  for  him,  such  authority  to  be  in  writing 
properly  executed  and  acknowledged.  The  ballot  and  the  written  authority 
were  to  be  sealed  in  an  envelope,  which  was  to  be  placed  inside  of  another  en- 
velope marked  “ soldier’s  vote,”  and  forwarded  to  the  elector  authorized  to  cast 
it,  by  mail  or  otherwise.  The  delivery  or  presentation  of  any  forged,  altered  or 
changed  ballot  was  declared  to  be  a misdemeanor,  subjecting  the  offender  upon 
conviction  to  fine  and  imprisonment. 

It  was  alleged  that  the  defendants  had  prepared  and  forwarded  spurious 
votes,  and  also  that  they  had  abstracted  genuine  votes  and  inclosed  others  in- 
stead. The  charge  was,  therefore,  of  the  most  heinous  character,  being  a 
political  crime  and  an  offense  against  society,  meriting  the  severest  punishment. 
Public  opinion  and  public  prejudice  were  strongly  against  the  prisoners,  and 
their  condemnation  was  demanded  by  the  press  of  the  country.  The  accused 
were  arraigned  before  a military  court,  sitting  at  the  national  capitol,  a tribunal 
which,  as  the  sequel  shows,  had  no  power  or  authority  to  detain  the  prisoners, 
and  was  without  jurisdiction  of  the  offense  charged. 

Under  such  circumstances  Mr.  Beach  made  his  masterly  argument  in  behalf 
of  the  defendants.  But  it  was  at  a juncture  when  the  advocate  appears  to  the 
best  advantage  and  is  of  the  greatest  service.  As  was  truly  remarked  by  Mr. 
James  T.  Bi*ady,  in  his  address  in  defense  of  the  “Savannah  Privateers,”  “the 
advocate  is  of  very  little  use  in  the  days  of  prosperity  and  peace,  in  the  periods 
of  repose.  It  is  only  when  public  opinion,  the  strong  power  of  government,  the 
formidable  array  of  influence,  the  force  of  a nation,  or  the  fury  of  a multitude 
is  directed  against  you,  that  the  advocate  is  of  any  use.” 

The  defense  presented  by  Mr.  Beach  was  twofold  in  its  character:  first,  he 
contended  that  the  court  had  no  power  or  authority  to  detain,  try  or  sentence  the 
prisoners,  and,  secondly,  that  from  the  evidence  in  the  case  it  appeared  that  the 
defendants  were  innocent  of  the  charges  preferred.  The  result  was  complimentary, 
not  only  to  the  intellectual  powers  of  the  advocate,  but  to  the  sterling  integrity 
of  the  members  of  the  tribunal  whom  he  addressed,  who  despite  the  pressure  of 
public  opinion  and  the  clamor  of  an  injured  community,  refused  to  usurp  powers 
which  they  did  not  possess,  and  discharged  the  prisoners. 

For  the  prosecution  appeared  General  John  A.  Foster,  the  judge  advocate. 
The  prisoners  were  represented  by  William  A.  Beach,  of  New  York,  and  John 
D.  McPherson  and  Mr.  Gillet,  of  Washington.  After  the  evidence  was  all  in, 
Mr.  Beach  addressed  the  court  as  follows  ; 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  451 


May  it  please  the  Commission: — I may  assume,  with  pro- 
priety, that  Your  Honors  and  myself  have  a common  purpose  in 
our  present  labor.  It  is,  to  accomplish  essential  justice.  Of  course 
this  is  the  sole  object  of  this  honorable  Court.  I know  the  parti- 
sanship of  counsel,  the  partial  prepossessions  of  professional  effort. 
But  there  are  occasions  of  exalted  interest,  which  inspire  the  spirit 
advocacy  with  something  of  their  own  elevation.  I deem  this 
me  of  them.  It  reaches  the  domain  of  executive  power.  It  asso- 
ciates with  the  cardinal  principles  of  government.  It  concerns  the 
jjacred  rights  of  personal  liberty  and  of  trial  by  jury.  It  is  magni- 
fied by  the  demands  of  exigent  w^ar.  We  cannot  but  feel  that  it  is 
invested  with  unusual  and  elevating  consequence.  While  I acknowl- 
edge the  enlarged  sentiments  it  excites,  I greatly  regret  that  it  does 
not  confer  a corresponding  ability  for  their  expression. 

I.  Powers  assumed  by  military  courts. 

I design  no  disrespect  by  the  remark,  that  I speak  rather  for  my 
cause  than  for  the  Court.  As  an  organized  tribunal  of  the  country 
I render  to  it,  personally  and  collectively,  the  respect  due  to  its 
dignified  position.  Still,  I cannot  resist  the  conviction,  that  this  is 
not  the  safest  judgment  seat  for  civil  right  and  individual  liberty. 
Your  Honors  are  a military  tribunal,  instructed  soldiers,  imbued,  it 
is  true,  with  the  chivalric  characteristics  of  your  profession,  but  in- 
clined, nevertheless,  to  the  severe  and  summary  conclusions  taught 
by  the  necessities  of  the  camp  and  the  field.  I miss  the  forms  and 
the  principles  of  civil  judicature,  the  atmosphere  of  legal  experience 
and  thought  pervading  the  courts  of  common  law.  I cannot  forget, 
that  I stand  in  the  presence  of  military  pov/er,  associated  with  all 
the  terror  it  brings  to  the  sensitive  apprehension  of  organized  and 
regulated  justice.  Nor  can  I forget,  that  in  the  progress  of  this 
case,  this  Court  has  already  demonstrated  its  natural  tendencies, 
manifested  the  influences  which  inhere  in  and  surround  it.  By  an  ex- 
cusable association  of  ideas,  one  would  connect  with  a military  court 
like  this,  the  trial  of  military  crimes.  Propriety  would  seem  to  re- 
quire that  its  jurisdiction  should  be  limited  to  the  soldier,  and  the 
necessities  of  armies;  that,  untaught  in  the  profound  wisdom  of 
municipal  law,  unfamiliar  with  the  vast  system  of  rules  within  which 
civil  right  is  enshrined,  this  Court  would  be  content  so  to  adminis- 
ter its  office,  as  to  protect  military  organization  and  secure  mili- 
tary efficiency. 

It  has  adjudged  otherwise.  It  asserts  the  power  to  punish  a 


452 


ARGUMENT  OF  WILLIAM  A.  BEACH 


civilian  for  an  offense  against  the  domestic  law  of  a State.  Ii 
claims  jurisdiction  over  the  citizen  of  New  York,  to  punish  an  al- 
leged crime  against  her  dignity  and  peace.  It  arrogates  the  power 
to  supersede  her  authority  not  only,  but  here,  in  the  midst  of  regu- 
lar courts,  active  and  efficient  in  the  exercise  of  all  their  functions, 
to  assume  the  trial  and  punishment,  by  military  law,  of  private  citi- 
zens charged  only  with  civil  malefaction. 

Surely  the  incongruity  of  this  proceeding  cannot  fail  to  excite 
astonishment  and  dread.  It  invests  this  cause  with  a new  dignity, 
elevating  it  far  above  personal  consequences.  It  will  be  engrafted 
upon  the  history  of  these  deplorable  times,  not  the  least  among  the 
many  indications  marking  the  decay  of  American  liberty. 

It  is  for  this  cause  I speak,  with  the  hope  of  demonstrating  its 
true  character,  and  exposing  dangerous  violations  of  public  law  and 
private  right. 

Your  Honors,  I am  sure,  have  no  desire  to  usurp  authority. 
You  cherish  the  rights  of  a common  citizenship.  You  recognize 
the  ancient  principles  which  constitute  this  government  a govern- 
ment of  law,  and  upon  which,  alone,  American  freedom  can  securely 
rely. 

In  the  great  emergency  oppressing  our  country,  the  fear  is,  that 
an  ardent  patriotism  will  forget  its  reverence  for  the  law;  that,  in 
eager  pursuit  of  desirable  ends,  it  will  be  less  scrupulous  of  the 
means  employed  Such  is  the  necessary  tendency  of  war.  It  is 
hostile  to  regulated  peace.  It  is  the  element  of  force  acting  de- 
structively upon  civil  institutions.  Unless  restrained  within  the 
limits  of  actual  necessity,  it  grows  into  turbulent  despotism. 

2.  The  action  of  the  court  cannot  be  justified  on  the 

PLEA  OF  MILITARY  NECESSITY. 

I do  not  overlook  or  deny  the  prerogatives  of  military  necessity. 
I acknowledge  the  presence  and  rights  of  war,  and  would  not,  if  I 
could,  abridge  the  power  which  shall  arm  this  government  with  the 
amplest  ability  to  maintain  its  integrity.  Purest  patriots  may  dif- 
fer in  the  details  by  which  this  result  may  be  attained,  but  to  that 
result  every  loyal  heart  is  irrevocably  pledged.  Quite  possibly  Your 
Honors  and  myself  might  differ  as  to  the  circumstances  creating 
the  extreme  necessity,  before  which  the  ordinary  functions  of  gov- 
ernment, and  the  securities  of  society,  are  at  once  prostrated.  I raise 
no  abstract  issue  of  principle.  Conceding  the  doccrine  in  its  most 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  453 

liberal  sense,  I yet  insist  that  it  has  no  principle,  either  of  right  or 
policy,  applying  to  a case  like  the  present. 

3.  A MILITARY  COMMISSION  HAS  AUTHORITY  TO  PUNISH  ONLY 

MILITARY  OFFENSES. 

It  is  upon  the  rights  of  war,  either  express  or  customary,  that 
this  prosecution  proceeds.  It  is  founded  upon  military  jurisdiction 
alone,  and  must  be  upheld  by  military  law.  It  can  gain  no  support 
from  municipal  enactment.  Your  Honors  are  not  exerting  a con- 
current jurisdiction.  You  claim  exclusive,  absolute  power,  deriv- 
ing and  seeking  no  aid  from  associated  authority. 

It  is  desirable,  therefore,  to  ascertain,  primarily,  the  character  of 
the  offense  charged  against  the  accused,  and  how  far,  if  at  all,  it  is 
recognized  as  a military  crime. 

4.  General  observation  as  to  the  nature  of  crime,  and 

THE  PHILOSOPHY  OF  PUNISHMENT. 

It  will  be  conceded,  that  all  crime,  punishable  by  human  au- 
thority, consists  in  the  violation  of  some  rule  of  conduct  declared 
and  published  by  some  competent  source.  The  principle  is  funda- 
mental. It  underlies  the  administration  of  criminal  justice  by  all 
tribunals,  whether  military  or  civil.  To  constitute  offense  there 
must  be  law  existing  and  law  violated;  and  the  law  which  declares 
it,  must  be  proclaimed  and  public.  If  it  exist  in  the  form  of  posi- 
tive enactment,  it  must  be  published.  If  it  be  customary  law,  it 
must  be  general,  uniform,  acknowledged.  The  citizen  cannot  be 
entrapped  into  crime.  He  must  be  notified  of  the  demands  of 
society  in  all  the  departments  of  its  action,  whether  of  peace  or  war, 
before  obedience  can  be  exacted,  and  disobedience  punished.  In 
a government  of  laws  those  acts  only  are  criminal  which  the  law 
condemns;  and  publicity  is  one  of  its  material  requisites.  The 
idea  of  secret  statutes,  withheld  from  the  subject  whose  conduct 
they  are  to  regulate,  is  hostile  to  every  principle  of  just  government, 
and  excites  the  sternest  indignation.  Hence  the  ponderous  statutes 
of  our  national  and  State  legislatures,  declaring  and  defining  crime, 
publicly  enacted  and  widely  promulgated.  Hence  the  principle 
of  antiquity  involving  immemorial  recognition,  upon  which  the 
common  law  rests.  Hence,  also,  it  is,  that  all  are  chargeable  with 
knowledge  of  the  law.  Ignorance  of  its  mandate  will  not  excuse 
the  offender.  It  is  the  duty  of  the  subject  to  know  it,  and  knowing, 
to  obey  it.  The  existence  of  the  implication  and  duty,  demands 


454 


ARGUMENT  OF  WILLIAM  A.  BEACH 


the  correlative  obligation  of  government,  to  publish  its  require* 
ments.  Men  cannot  be  required  to  know  that  which  is  unrevealed, 
or  to  obey  that  which  is  unannounced.  They  cannot  be  punished 
but  for  sinning  with  knowledge,  or  with  the  means  of  knowledge. 
History  has  immortalized  the  shame  of  the  ancient  lawgiver,  whose 
edicts  were  only  published  upon  the  city  walls,  high  above  the  ob- 
servation of  the  people.  And  if  ever  an  American  citizen  shall  be 
condemned  under  an  unknown  law,  history  will  be  true  to  her  trust, 
and  perpetuate  the  memory  and  condemnation  of  the  prodigious 
wrong. 

5.  The  authority  of  the  court  extends  only  to  viola- 
tions OF  MILITARY  LAW. 

This  inquiry  into  the  nature  of  the  offense  charged,  of  neces- 
sity involves  the  jurisdiction  of  this  Court.  If  military  law  has  not 
been  invaded.  Your  Honors  have  no  power  to  punish.  It  is  an  in- 
quiry always  pertinent  and  proper.  It  may  be  raised  by  prelimi- 
nary plea  to  the  charge  and  specifications,  or  upon  final  submis- 
sion; and  whenever  and  however  presented,  imperatively  demands 
the  consideration  of  the  Court.  To  this  proposition  I cite  from 
O’Brien,  p.  248,  and  De  Hart,  p.  iii. 

“ The  prisoner  may  make  a plea  of  demurrer  by  pleading  that 
even  if  the  facts  alleged  be  true,  they  do  not  amount,  as  stated,  to 
the  offense  charged.  When  the  facts  do  not  amount  to  any  offense 
cognizable  by  a military  court,  the  prisoner  may  take  advantage  of 
it  by  a plea  of  demurrer,  by  a plea  of  jurisdiction,  or  under  the 
general  plea  of  not  guilty.”  ^ 

“For  although  the  prisoner  might  subsequently  plead  the  want 
of  relevancy,  or  perspicuity  in  the  charge,  still,  as  the  court  is  the 
judge  of  its  own  competency,  at  any  stage  of  its  proceedings,  and  is 
bound  to  notice  questions  of  jurisdiction  whenever  raised,  the 
mode  of  procedure  now  suggested,  could  never,  in  any  instance, 
militate  against  the  interests  of  the  accused,  and  might,  in  some, 
save  much  useless  trouble  and  individual  responsibility.”* 

My  position,  therefore,  is,  that  to  give  this  Court  jurisdiction,  the 
charge  and  specifications  must  impute  military  crime;  and  that,  to 
be  so,  the  acts  specified  must  be  declared  unlawful  by  the  articles 
of  war,  or  be  such  as  are  “ repugnant  to  military  discipline,  and  are 
pointed  out  by  law;  by  the  general  regulations  of  the  army,  and  by 
the  customs  of  war.” 

^ O’Brien’s  Am.  Mil.  Law,  p.  248. 

De  Hart  on  Courts-martial,  p.  iii. 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  455 

“ The  charge  must  enunciate  some  one  general  crime  provided 
against  by  the  articles  of  war.  It  must  enunciate  it  clearly  and  dis- 
tinctly, so  that  the  prisoner  may  know  precisely  the  offense  of 
which  he  is  accused.”  ^ 

Here  Mr.  Beach  cited  De  Hart  on  Courts-martial,  p.  299,  to  establish  the 
proposition  that  where  the  charge  itself  does  not  name  any  crime  provided  for 
generally  or  specifically  by  any  of  the  articles  of  war,  the  court  was  bound  to 
discharge  the  prisoner.  (For  the  extract  cited,  see  Appendix,  p.  726.)  He  then 
continued: 

The  Court  will  observe  how  admirably  these  citations  maintain 
the  idea  of  published  or  known  law.  They  recognize  the  indis- 
pensable ingredient  of  publicity.  Acts  designated  as  such,  by  pos- 
itive law,  by  general  army  regulations  and  the  custom  of  war,  are 
alone  crimes.  The  adoption  of  articles  of  war  by  Congressional 
enactment,  the  promulgation  of  regulations,  the  growth  of  customs, 
all  assume  the  necessity  of  established  and  notified  obligation. 
Their  object  is  to  form  a military  code,  prescribing  rules  of  action 
promotive  of  the  efficiency  of  the  service,  and  defining  the  powers  of 
military  tribunals.  If  there  be  an  undefined  jurisdiction,  springing 
from  a pretended  necessity,  roaming  unrestrained  and  unregulated, 
without  law 'to  limit  or  judge  its  action,  adjudging  crime  at  pleasure 
and  punishing  at  discretion,  what  need  of  articles  of  war  or  army 
regulations  ? And  how  long  would  the  rights  of  citizenship  stand 
before  the  bold  usurpation  ? 

Your  Honors  must,  therefore,  find  in  these  nominated  sources  of 
your  authority,  some  provision  constituting  the  acts  charged  against 
the  defendants’  military  crimes.  What  then  is  the  charge  ? 

6.  The  charges  against  defendants  do  not  embrace  a 

MILITARY  CRIME. 

It  alleges  “ conduct  prejudicial  to  the  military  service  of  the 
United  States,  and  in  fraud  of  the  electoral  rights  and  duties  of  the 
soldiers  and  officers  in  said  service.” 

It  will  be  perceived  that  the  charge  is  of  conduct  having  two 
characteristics  or  consequences;  not  of  two  distinct  species  of  acts 
It  affirms  that  the  defendants  have  been  guilty  of  deeds,  which  are 
both  prejudicial  to  the  service  and  in  fraud  of  electoral  right.  It  is 
not  necessary,  here,  to  contend  that  the  proven  offense  must  com- 
bine the  two  alleged  results.  The  position  may  be  assumed  with 


^ O’Brien’s  Am.  Mil.  Law,  p.  235. 


456 


ARGUMENT  OF  WILLIAM  A.  BEACH 


great  piopriety.  The  charge  and  specifications  are  analogous  to  an 
indictment,  averments  in  which,  descriptive  of  the  offense,  must  be 
proven  as  laid.  The  point,  however,  now  is,  not  the  sufficiency  of 
the  proof,  but  the  law  declaring  the  things  charged  to  be  criminal. 
If  it  be  conceded  that  the  testimony  sustains  the  charge,  it  is  denied 
that  either  affirm  a military  crime.  Grant  that  the  proven  acts  prej- 
udiced the  service,  where  is  the  article,  or  regulation,  or  custom, 
declaring  them  criminal  in  the  civilian  ? What  law  prohibits  them 
as  to  him  ? Are  they  forbidden  by  the  provisions  devised  by  the 
wisdom  of  Congress,  or  established  by  the  experience  of  the  past  ? 
This  is  the  first  essential  inquiry. 

It  is  by  the  specifications  that  these  defendants  must  be  judged. 
They  must  sustain  the  charge  not  only,  but  must,  in  themselves, 
constitute  the  crime,  or  some  degree  of  it,  embodied  in  the  charge. 

Here  Mr.  Beach  cited  O’Brien’s  American  Military  Law,  pp.  234  and  235,  to 
show  that  the  specifications  must  not  only  sustain  the  charge,  but  must  them- 
selves embody  the  offense  charged.  (For  the  extract  cited,  see  Appendix,  p. 
728.)  He  then  continued: 

7.  The  charges  not  sustained  by  the  specifications. 

It  is  manifest  that  these  specifications  do  not  uphold  that  branch 
of  the  charge  which  imputes  conduct  prejudicial  to  the  military 
service  of  the  United  States.  The  most  perverse  ingenuity  will 
fail  to  connect  with  that  service,  in  the  remotest  association,  the 
forgery  of  soldiers’  votes,  or  frauds  upon  their  elective  suffrage. 
They  are  utterly  disconnected  with  the  military  character  and  duty 
of  the  soldier.  They  deprive  him  of  no  martial  right.  They,  in 
no  degree,  diminish  his  soldierly  ability,  or  disqualify  him  for  service. 
They  affect  him  only  in  his  civil  relations,  impairing  none  of  his 
obligations  to  the  government,  neither  seducing  him  from  his  duty 
nor  impairing  his  fitness  to  perform  it.  How,  then,  do  these  alleged 
frauds  prejudice  the  military  service  of  the  United  States  ? It  is 
for  the  learned  judge  advocate  to  maintain  it,  and  for  this  Court, 
intelligently  and  conscientiously,  to  adjudge  it.  No  vague  and  in- 
definite accusation  will  answer  the  demands  of  justice.  No  general 
assertion  of  injury  to  the  service  will  satisfy  the  responsibility  of 
the  Court.  It  must  be  able  to  perceive  clearly  the  injurious  effect, 
and  to  trace  it  to  the  alleged  cause.  If  there  be  any  substantial 
imperfection  in  the  relation,  this  prosecution  falls.  The  charge 
and  the  specifications  must  harmoniously  co-exist,  each  founded 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  457 


upon  and  mutually  sustaining  the  other.  This  is  the  plain  teaching 
of  military  law,  followed  by  the  uniform  practice  of  its  courts. 

I respectfully  but  emphatically  ask,  then,  if  these  specificadons 
disclose  any  acts  inimical  to  military  service  ? Can  it  be  that  a 
reputable  Court  will  adjudge  a proposition  so  revoltingly  preposter- 
ous and  false  ? 

8.  Civil  offenses  not  within  the  jurisdiction  of  the 

COURT. 

The  remnant  of  the  charge  requires  Your  Honors  to  adjudicate 
that  frauds  upon  the  elective  rights  and  duties  of  soldiers,  in  no 
degree  affecting  the  military  service  of  the  United  States,  are 
crimes  punishable  by  courts-martial.  To  this  complexion  this  ar- 
gument must  come,  at  last.  It  is  upon  this  theory  that  the  defend- 
ants must  be  condemned,  if  at  all.  No  sophistry  can  evade  the 
position.  You  must  find  in  the  specifications  the  elements  of  the 
crime  you  adjudge,  and  you  find  in  them  no  other  accusation.  It 
is  a direct,  bold  issue,  which  must  be  frankly  met  and  responsibly 
determined.  I press  it  vigorously,  in  all  its  bald  and  repulsive  ab- 
surdity, upon  the  consideration  of  the  Court.  You  are  expected  to 
record,  by  solemn  judicial  decree,  that  the  forgery  of  a soldier’s 
vote,  or  fraud  upon  his  elective  franchise,  is  a military  crime,  sub- 
jecting the  offenders  to  an  undefined  penalty  under  military  law. 
The  proposition  needs  but  its  statement  for  its  refutation.  Nay, 
may  it  plea-se  Your  Honors,  the  statement  awakens  something  more 
than  a mental  dissent.  It  shocks  the  commonest  intelligence,  and 
arouses  a bitter  resentment.  The  free  sentiment  of  this  country  is 
not  so  far  subdued  that  it  can  feel  nothing  but  fear  under  the 
threatening  pretension.  We  venerate  the  institutions  of  our  fathers; 
we  cling  to  the  Union,  hallowed  by  their  wisdom  and  sacrifice;  we 
yield  and  suffer  much  for  its  preservation:  but  if  it  is  to  be  saved 
only  by  the  surrender  of  the  dearest  privileges  it  confers  to  the 
dominion  of  military  power;  if  the  purest  civil  rights  are  to  be 
grasped  by  a military  jurisdiction,  it  may  be  well  worth  considera- 
tion whether  the  boon  deserves  the  price. 

9.  No  AUTHORITY  CONFERRED  UPON  THE  COURT  TO  TRY  CIVIL 

OFFENSES. 

I pray  Your  Honors  to  inquire  for  the  source  of  your  authority, 
to  entertain  this  indictment.  What  article  of  war,  what  army  regu- 
lation, what  custom  of  warfare  confers  it  ? I search  for  it  in  vain. 


458 


ARGUMENT  OF  WILLIAM  A.  BEACH 


Your  Honors  are  a Court  of  special  and  limited  powers.  You  have 
no  original  or  general  jurisdiction.  You  are  created  by  the  na- 
tional executive,  by  virtue  of  an  act  of  Congress.  I look  to  the 
act,  to  the  order  under  which  you  convene,  and  I find  no  special 
delegation  of  this  authority.  I look  to  the  general  law,  to  military 
usage,  and  I find  there  no  countenance  for  your  claim.  Upon 
what,  then,  is  it  founded  ? If  it  exist  at  all,  it  must  be  traceable  in 
some  enactment,  or  regulation,  or  custom.  These  all  are  silent. 
And  the  strange  anomaly  is  presented  of  a special  Court,  exercising 
important  criminal  functions,  derived  neither  from  the  legislature, 
the  executive,  or  the  customs  of  mankind.  Such  a spectacle  may 
well  excite  profound  astonishment  and  dismay.  The  assumption  is 
accompanied  with  a tremendous  responsibility.  It  cannot  pass  un- 
noticed in  an  intelligent  community,  educated  in  the  midst  of  au- 
thorized courts  and  mindful  of  their  constitutional  rights. 

lo.  Military  law  defined. 

In  this  connection  I invite  Your  Honors’  attention  to  an  admi- 
rable definition  of  military  law,  and  the  powers  of  its  courts,  from 
O’Brien.  He  says: 

“ Military  law  may  be  defined  to  be  a body  of  rules  and  ordi- 
nances prescribed  by  competent  authority  for  the  government  of  the 
military  state  considered  as  a distinct  community.  It  is  an  accu- 
mulation law.  The  citizen,  on  becoming  a soldier,  does  not  merge 
his  former  character  in  the  latter.  He  relieves  himself  from  none 
of  his  former  duties  and  obligations.  Instead  of  this,  he  engages 
to  perform  other  duties  in  addition  to  those  with  which  he  was 
formerly  charged.  He  submits  himself  to  a special  code  of  laws 
which  does  not  supersede  or  abrogate  that  to  which  he  was  formerly 
subject,  but  which,  on  the  contrary,  binds  him  by  a new  tie  to  the 
very  same  authority  which,  as  a citizen,  he  previously  obeyed. 
With  regard  to  civil  powers  and  authorities  he  stands  in  the  pre- 
cise position  he  formerly  occupied.  They  lose  none  of  their  rights 
and  prerogatives.  He  still  remains  subject  to  them,  and  is  bound 
to  assist  and  aid  them  even  in  the  apprehension  of  his  military  com- 
rades. There  is  no  principle  more  thoroughly  incorporated,  in  our 
military  as  well  as  in  our  civil  code,  than  that  the  soldier  does  not 
cease  to  be  a citizen,  and  cannot  throw  off  his  obligations  and 
responsibilities  as  such.  The  general  law  claims  supreme  and  un- 
disputed jurisdiction  over  all.  The  military  law  puts  forth  no  such 
pretensions.  It  aims  solely  to  enforce  on  the  soldier  the  additional 
duties  he  has  assumed.  It  constitutes  tribunals  for  the  trial  of 
breaches  of  military  duty  only.  It  attempts  not  to  regulate  or  ad- 
just the  civil  rights  of  those  who  fall  under  its  cognizance,  nor  does 
it  affect  to  redress  civil  injuries  or  private  wrongs,  unless  they  be. 


IN  DEFENSE  OF  Sx\MUEL  NORTH  AND  OTHERS. 


459 


in  some  degree,  connected  with  the  safety  and  good  order  of  the 
military  state,  as  having  a tendency  to  disturb  its  peace  and  quiet. 
Civil  injuries  or  private  wrongs,  not  immediately  related  to  the 
rights  of  a soldier,  as  such,  are  left,  like  his  civil  rights,  to  the  re- 
dress of  the  general  or  common  law. 

“These  two  systems  of  law  can,  in  no  case,  come  in  collision. 
Their  spheres  of  action  are  different.  The  military  code  com- 
mences where  the  other  ends.  It  finds  a body  of  men  who,  besides 
being  citizens,  are  also  soldiers.  Their  rights  and  duties  in  the 
former  capacity  it  finds  already  well  established;  but,  in  their  latter 
capacity,  their  duties  are  undefined,  their  rights  are  unascertained, 
until  it  steps  in  to  fill  this  vacuum,  to  place  the  soldier  as  com- 
pletely under  the  cover  of  law,  and  to  guard  him  as  securely  against 
tyrannical  and  arbitrary  power  in  his  military  as  in  his  civil  char- 
acter. The  one  code  embraces  all  citizens,  whether  soldiers  or 
not;  the  other  has  no  jurisdiction  over  any  citizen  as  such.”  ^ 

Your  Honors  perceive  how  completely  the  extract  justifies  my 
reasoning.  It  will  impress  Your  Honors  with  its  obvious  propriety. 
It  assigns  to  Courts  like  yourselves,  their  true  position.  It  enables 
them  to  accomplish  their  full  office,  without  interference,  with  the 
ordinary  tribunals  of  the  country.  It  disturbs  none  of  the  relations 
of  civil  life.  It  assigns  to  you  exclusively  the  field  of  military  dis- 
cipline and  efficiency.  It  maintains  a wise  harmony  between  the 
necessity  which  called  you  into  existence  and  the  functions  you 
should  exercise. 

II.  Ruinous  consequences  which  must  follow  an  assump- 
tion OF  UNLAWFUL  AUTHORITY. 

Why,  then,  assume  ungranted  and  dangerous  power?  You  are 
created  for  the  good  of  the  army,  and  for  that  alone.  Why  enlarge 
the  circle  of  your  duty,  and  that  upon  a principle  which  stretches 
it  over  every  civil  right  of  the  soldier  ? It  is  not  only  unjustifiable; 
it  is  profitless.  You  accomplish  thereby  no  beneficial  result.  The 
consequences  are  all  evil.  You  inaugurate  a baleful  conflict  be- 
tween civil  and  military  power.  You  spread  wider  the  terrors  of  in- 
surrectionary war,  devastate  more  broadly  the  institutions  of  peace, 
and  alienate  the  confidence  of  the  people.  The  bold  spirit  of 
the  trained  commander  may  mock  these  unprosperous  issues,  but 
Your  Honors  are  upon  the  judicial  bench,  not  in  the  field.  You 
are  called  to  exert  the  prudence  of  the  judge,  not  the  fearlessness 
of  the  veteran.  Wisdom,  not  courage,  is  the  quality  of  your  posi- 


^ O’Brien’s  Am.  Mil.  Law,  pp.  26,  27. 


460 


ARGUMENT  OF  WILLIAM  A.  BEACH 


tion.  We  live  in  perilous  times,  when  it  becomes  us  to  act  wisely. 
The  foundations  of  government  are  fiercely  shaken.  Recent  events 
seem  to  assure  us  that  they  are  rapidly  settling  to  their  former 
solidity;  but  there  is  a mighty  work  of  reconstruction  before  this 
people.  With  peace  will  come  the  onerous  duty  of  reorganization, 
and  a more  sensible  appreciation  of  the  accumulated  burdens  of 
war.  It  is  well  to  limit,  as  far  as  may  be,  its  devastations  upon 
civil  right,  and  to  cultivate  amity  between  the  government  and  the 
people.  This  will  not  be  done  by  needless  encroachment  upon 
their  privileges,  and  a reckless  and  ruthless  exertion  of  military 
power. 

If  Your  Honors  assume  this  jurisdiction,  you  are  forced,  more- 
over, to  devise  a punishment  for  the  crime  you  invent.  You  en- 
counter a fresh  novelty  in  this  necessity.  You  have,  then,  not  only 
a roving  commission  to  try  all  charges,  but  plenary  discretion  to 
punish.  Your  Honors  are,  without  guide  or  limit,  the  most  uni- 
versal and  arbitrary  Court  on  the  face  of  the  earth.  You  may  re- 
vive the  barbarity  of  the  ancient  law  of  Britain,  or  practice  the 
most  indulgent  lenity.  You  may  discriminate  between  culprits,  and 
protect  friends  while  you  crush  enemies.  It  is  a most  convenient 
license.  You  may  choose  your  subjects  at  pleasure,  and  dispose  of 
your  selected  victims  as  caprice  or  interest  may  dictate;  or  you 
may  execute  submissively  the  will  of  the  power  which  made  you. 

I am  not  exaggerating  the  statement.  I have  proven  that  there 
is  no  law  empowering  this  Court  to  try  the  accused  upon  the  mat- 
ters alleged;  and  I affirm  that  there  is  no  law  specifying  their  pun- 
ishment. With  the  exception  of  spies,  suttlers,  commissaries,  camp 
retainers,  and  the  like,  no  non-military  offender  is  triable  or  punish- 
able under  the  articles  of  war,  or  any  other  law  or  custom,  except 
martial  law  regularly  declared.  There  is  no  provision  for  a case 
like  the  present.  Hitherto  it  has  been  uncontemplated  by  delib- 
erative or  executive  wisdom,  unrequired  by  the  emergencies  of 
war.  If  it  be  true,  that  Your  Honors  may  try  and  punish  under 
these  specifications,  it  is  the  only  example  under  heaven,  outside  of 
absolutism,  where  a citizen  may  be  condemned  without  law  limiting 
the  punishment,  either  by  specified  penalty  or  by  a conferred  dis- 
cretion. This  fearful  prerogative  to  punish,  exposed  to  all  the 
temptations  which  beset  it — now  urging  it  to  vindictive  cruelty,  and 
now  seducing  it  to  weakness — changing  and  vacillating  and  ter- 
rible, cannot  exist  where  justice  is  respected.  It  prostrates  per- 
sonal security  at  the  foot  of  judicial  power.  It  would  multiply  in 


IN  DEFENSE  OF  SA.MUEL  NORTH  AND  OTHERS. 


461 


this  land  the  infamous  scenes  enacted  in  England  by  a Scroggs  and 
a Jeffries.  Courts  like  this  would  be  fearful  as  the  inquisition — ■ 
tremendous  and  destructive  engines,  wielded  by  unsparing  hands, 
against  the  franchises  of  liberty. 

12.  Defendants  entitled  to  an  acquittal. 

I know  Your  Honors  are  bold  and  brave  men,  sinewed  and 
strong  “ on  the  perilous  ridges  of  battle,”  but  it  requires  another 
hardihood  to  strike  at  the  integrity  of  the  law — full  against  the 
buckler  of  the  Constitution.  My  clients  stand  securely  under  these 
safeguards.  They  invoke  you,  by  your  respect  for  these,  by  your 
instinctive  sense  of  right,  by  your  veneration  for  the  past  and  your 
trust  for  the  future,  to  stay  this  ill-judged  prosecution.  They  de- 
mand an  acquittal,  for  want  of  jurisdiction  in  this  Court.  Innocent 
or  guilty,  it  is  their  lawful  due.  If  they  have  broken  the  law,  it  is 
not  your  law.  If  they  deserve  punishment,  yours  are  not  the  hands 
to  inflict  it.  Meet  this  issue  in  the  enlarged  spirit  of  the  upright 
judge,  enlightened  by  patriotic  forecast.  The  plaudits  and  bless- 
ings of  the  country  will  attend  your  judgment.  It  will  stand  an 
enduring  landmark,  illustrative  of  judicial  integrity  and  independ- 
ence, amidst  the  disquieting  and  disintegrating  influences  of  the 
present  hour. 

13.  Distinction  between  martial  law  and  military  law. — 
Martial  law  not  applicable. 

The  position  I have  argued  is  not  overcome  by  the  prevailing 
presence  of  martial  law.  I raise  no  question  as  to  the  power  to 
declare  it  in  certain  emergencies.  I concede,  that,  wherever  law- 
fully existing,  it  supplants  civil  authority  and  consolidates  in  a 
single  will  all  the  powers  of  the  State.  Mr.  De  Hart  thus  writes: 

“ It  must  be  understood,  however,  that  the  term  martial  law  has 
a different  interpretation  from  that  of  military  law.  Military  law, 
as  has  been  stated  above,  is  a rule  for  the  government  of  military 
persons  only,  but  martial  law  is  understood  to  be  that  state  of 
things  when,  from  the  force  of  circumstances,  the  military  law  is 
indiscriminately  applied  to  all  persons  whatsoever.  The  distinction 
is  thus  expressed  by  a writer  on  military  law:  ‘ Martial  law  extends 
to  all  persons;  military  law  to  all  military  persons,  but  not  to  those 
in  a civil  capacity.’  ” * 

But,  if  Your  Honors  please,  this  tyrannical  and  abyssmal  law  is 
* De  Hart  on  Courts-martial,  p.  17. 


462 


ARGUMENT  OF  WILLIAM  A.  BEACH 


only  invoked  in  seasons  of  the  extremes!  anarchy  and  peril.  It  is 
an  act  of  the  last  necessity;  and  it  must  be  proclaimed  before  the 
ordinary  avenues  of  justice  are  closed  and  the  vitality  of  civil  right 
is  strangled  in  the  mailed  grasp  of  military  rule.  It  will  not,  I 
think,  be  pretended  that  martial  law  exists  here.  No  proclamation 
has  established  it.  It  does  not  practically  exist.  Your  streets 
abound  with  an  armed  soldiery,  and  the  commandant  issues  neces- 
sary orders  for  their  government  and  discipline;  but  the  civil 
magistracy  continue  to  discharge  their  appropriate  duties,  while  the 
higher  courts  dispense  the  weightier  matters  of  the  law. 

I understand  the  learned  judge  advocate  to  maintain  that  the 
city  of  Washington  is  “in  the  field,”  in  a sense  which  introduces 
martial  law.  I am  not  familiar  with  the  technical  signification  of 
the  term.  Unskilled  judgment  will  apply  it  only  to  the  scene  of 
active  operations  in  presence  of  an  enemy.  Such  an  exigency  alone 
demands  the  suppression  of  the  usual  agencies  of  social  order. 
Non-combatants  would  not  consider  an  unbeleaguered  garrison  “in 
the  field,”  nor  a recruiting  station,  nor  depots  for  troops.  If 
Washington  is  “in  the  field,”  so  is  Baltimore  and  New  York,  and 
the  large  cities  of  the  West,  and  martia,!  law  impends  over  their 
peaceable  and  loyal  populations.  I submit  to  Your  Honors,  this 
would  be  an  unnecessary  and  mischievous  application  of  the  term, 
vastly  overreaching  the  necessity  from  which  it  originates.  It  is  a 
palpable  misapplication  if  it  implies  the  consequences  claimed  by 
the  learned  judge  advocate. 

14.  Rule  as  to  the  existence  of  martial  law. 

I deny,  however,  that  martial  law  accompanies  armies  in  the 
field,  except  in  the  control  of  the  excrescences  which  attend  them. 
Mr.  De  Hart  thus  states  the  doctrine: 

“ Armies,  when  engaged  in  active  operations,  are  at  all  seasons 
accompanied  by  a large  train  of  followers  who  minister  to  their 
convenience  and  comfort.  The  various  descriptions  of  persons  in- 
cluded under  that  appellation  have  granted  to  them  certain  privi- 
leges, such  as  living  within  the  boundaries  of  the  camp,  and  pro- 
tection to  their  persons  and  property,  dependent  necessarily  upon 
the  essential  conditions  of  good  order,  quiet,  subordination  and 
fidelity  to  the  State.  The  great  important  interest  to  the  nation 
involved  in  the  movements  of  an  army,  which,  for  certainty  of  ac- 
tion, uniformity  of  conduct  and  ultimate  success,  must  rely  mainly 
upon  a system  of  rigid  discipline,  has  caused  the  rule  which  applies 
everywhere  else  for  the  protection  of  the  civilian,  to  be  somewhat 
modified,  or  even  for  the  time  to  be  entirely  set  aside;  hence  the 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


463 


custom  which  provides  in  the  field,  of  trying  persons  not  connected 
with  the  army  by  courts-martial,  must  have  arisen  from,  as  it  de- 
pends on,  necessity.  Were  any  other  principle  for  the  regulation 
of  such  persons  admissible,  it  is  certain  that  an  army  might  suffer 
the  greatest  detriment,  and  a way  might  thereby  be  opened  for  the 
easy  communication  of  the  enemy,  and  the  acquisition  and  trans- 
mission of  intelligence.  Disorder,  riot  and  confusion  would  neces- 
sarily also  prevail;  for  it  would  be  quite  impossible  to  exact  the 
observance  of  different  police  laws  by  the  enlisted  soldier  and  the 
follower  of  the  camps,  when  both  parties  are  confined  to  the  same 
limits. 

“But  it  must  be  remembered,  that  the  opposition  of  such  laws 
to  such  persons  would  not  be  warranted  in  time  of  peace,  under 
the  ordinary  conditions  of  camps  and  garrisons;  and  wherever  civil 
jurisdicture  is  in  force,  the  followers  of  the  camp  who  are  accused 
of  crimes  punishable  by  the  known  laws  of  the  land,  must  be  given 
up  to  the  civil  magistrate.”  * 

In  this  form  the  rule  is  quite  admissible.  It  secures  all  the 
benefit  sought,  without  injury  to  the  general  interests  of  society. 
It  subjects  those  who  voluntarily  attach  themselves  to  the  army  to 
the  imperious  necessity  which  surrounds  it  with  prompt  and  vigor- 
ous subjection.  There  is  justice  in  it,  as  well  as  need  of  it. 
But  this  seems  not  to  appease  the  rapacious  spirit  of  military  con- 
solidation. It  is  not  content  with  the  “ field,”  but  aspires  to  the 
city.  It  annexes  to  an  army,  quartered  in  the  quiet  and  luxurious 
metropolis  of  the  Union,  the  incidents  and  necessities  which  per- 
tain only  to  the  “ tented  field  ” and  the  sulphurous  din  of  war. 
The  ambition  is  not  likely  to  be  gratified.  It  may  encroach  some- 
what upon  the  steady  movements  of  our  civil  organizations,  but 
their  majestic  revolution  will,  full  soon,  repel  the  aggression. 

15.  Consequences  of  the  doctrine  advanced  by  the 

JUDGE  ADVOCATE. 

If  the  position  be  sound,  the  municipal  and  judicial  institutions 
of  this  district  exist  only  by  military  sufferance.  The  action  of  its 
courts  depends  entirely  upon  the  indulgence  of  military  grace.  It 
needs  but  the  order  of  a military  governor,  and  your  august  na- 
tional temple  will  be  polluted  by  the  tread  of  an  armed  soldiery, 
and  its  halls  of  justice  and  of  legislation  be  closed.  An  improvised 
military  commission  will  occupy  the  places  of  the  reverend  justices 
who  dignify  our  national  tribunal,  and  military  edicts  will  supplant 
the  deliberations  of  Congress.  This  is  the  legitimate  and  close 


* De  Hart  011  Courts-martial,  pp.  22,  23. 


464 


ARGUMENT  OF  WILLIAM  A.  BZACII 


conclusion  of  the  argument.  If  Your  Honors  adjudge  the  doctrine, 
you  must  accept  these  consequences;  and  they  may  follow  more 
speedily  than  Your  Honors  would  desire.  Events  quite  as  won- 
derful have  happened  in  history. 

i6.  Constitutional  rights  cannot  be  suspended. 

The  learned  judge  advocate  affirms  your  jurisdiction  upon  an- 
other and  still  more  alarming  theory.  He  invokes  your  action,  be- 
cause, as  he  declares,  in  time  of  war  “ the  great  mass  of  the  pro- 
visions of  the  Constitution  are  suspended.” 

It  is  a startling  announcement,  coming  from  the  public  prosecu- 
tor, on  behalf  of  the  United  States,  uttered  within  sound  of  Capitol 
Hill,  under  the  very  droppings  of  the  sanctuary.  If  it  were  not  for 
its  savor  of  authority,  it  would  be  execrated  as  an  appalling  sacri- 
lege. I denounce  the  sentiment  as  at  once  unsound  in  law  and 
atrocious  in  principle.  In  a free  government,  regularly  operating 
in  its  legitimate  sphere,  no  imaginable  condition  of  things  suspends 
for  an  instant  the  constitutional  privileges  of  the  citizen.  War 
largely  subverts  individual  right,  but  war  co-exists  with  the  Consti- 
tution. It  is  by  the  efficient  exercise  of  powers  granted  by  it,  not 
by  its  subversion,  that  the  calamities  of  war  are  to  be  overcome. 
Broad  and  ample  provisions  anticipate  the  exigency.  It  did  not 
escape  the  prophetic  intuition  of  the  fathers  of  the  republic.  Just 
emerged  from  the  strife  of  the  revolution,  they  were  unlikely  to  for- 
get, in  the  formation  of  a government,  the  necessities  of  war.  It  is 
the  wonder  of  their  marvelous  work  that  it  grasped  and  provided 
for  all  the  possibilities  of  the  future.  It  was  formed  for  perpetuity; 
it  left  nothing  to  the  hazard  of  a contingency;  it  confided  to  the 
general  government  the  power  of  making  treaties,  of  declaring  war, 
of  suppressing  insurrection. 

Under  and  by  virtue  of  the  Constitution,  Congress  and  the  ex- 
ecutive wield  the  vast  resources  of  the  nation.  By  it  cur  navy  is 
founded  and  our  armies  marshaled.  Its  energies  have  gathered 
the  triumphant  hosts  who  proudly  bear  to-day  its  banner  over  the 
ruins  of  a gigantic  rebellion.  Obedient  to  it,  a loyal  people  have 
lavished  upon  this  government  their  richest  treasures.  What  more 
does  the  rapacity  of  war  demand  ? And  what  will  be  the  end  of 
an  impaired  Constitution  ? The  nature  of  this  government  will  be 
essentially  changed,  and  all  its  invigorating  principles  necessarily 
paralyzed.  If  this  be  done  by  military  power,  and  in  so  far  as 
done,  it  is  military  despotism;  however  done,  it  is  revolutionary 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  465 

The  Constitution  ordains  this  government,  organizes  its  form  and 
confers  and  limits  its  authority.  The  principle  is  elemental  in  the 
law  and  statesmanship  of  the  country.  The  maxim,  that  govern- 
ment is  derived  from  the  consent  of  the  governed,  is  old  but  not 
forgotten.  It  is  graven  deep  upon  our  historic  record.  It  is  the 
living  principle  of  our  national  life.  This  consent  is  expressed  in 
the  Constitution;  through  it  alone  are  our  rulers  empowered. 
There  is  no  other  fountain  of  power;  there  cannot  be,  in  a consti- 
tutional system.  All  exercised  authority  not  conferred  by  its 
grants,  express  and  implied,  is  but  audacious  usurpation,  tending  in 
the  degree  of  its  departure  to  the  overthrow  of  free  institutions. 

In  the  memorable  contests  of  the  past  over  governmental  power, 
how  constantly  have  our  great  jurists  and  statesmen  appealed  to 
the  Constitution,  bowing  in  reverent  submission  to  its  supremacy, 
recognizing  and  honoring  the  obligation  and  wisdom  of  its  limita- 
tions and  restraints!  The  idea  of  the  learned  judge  advocate  is  a 
wild  paradox,  born  of  these  inauspicious  days.  Not  until  now  has 
it  been  taught  that  the  great  charter  of  American  liberty  has  lost 
its  virtue;  that  the  exigencies  of  war  suspend  the  fundamental  law 
by  which  alone  government  exists.  If  so,  it  must  then  survive  by 
its  own  inherent  strength,  and  that  is  a military  dictatorship.  It  is 
claimed  thus  to  override  the  Constitution  under  the  pretense  of  an 
inexorable  necessity.  It  is  the  old  plea  of  tyrants,  and  thus  always 
have  encroachments  upon  waning  liberty  begun,  and  the  end,  un- 
resisted, has  ever  been  sure  and  fatal. 

Half  a century  ago,  the  gorgeous  genius  of  Erskine  denounced 
this  dogma  of  Kingcraft.  I appropriate  his  language.  On  Hardy’s 
trial  for  treason  he  thus  spoke: 

“ What  is  it  that  distinguishes  the  government  of  England  from 
the  most  despotic  monarch  ? What  but  the  security  which  the 
subject  enjoys  in  a trial  and  judgment  by  his  equals  ; rendered 
doubly  secure  as  being  part  of  a system  of  law  which  no  expedi- 
ency can  warp,  and  which  no  power  can  abuse  with  impunity!  To 
the  attorney-general’s  second  preliminary  observation  I equally 
agree;  I anxiously  wish  with  him  that  you  shall  bear  in  memory 
the  anarchy  which  is  desolating  France.  Before  I sit  down,  I may, 
perhaps,  in  my  turn,  have  occasion  to  reflect  a little  upon  its  prob- 
able causes;  but,  waiting  a season  for  such  reflection,  let  us  first 
consider  what  the  evil  is  which  has  been  so  feelingly  lamented  as 
having  fallen  on  that  unhappy  country.  It  is,  that  in  the  dominion 
of  a barbarous  State  necessity,  every  protection  of  law  is  abrogated 
and  destroyed;  it  is,  that  no  man  can  say,  amid  such  a system  of 
alarm  and  terror,  that  his  life,  his  liberty,  his  reputation,  or  any  one 
30 


ARGUMENT  OF  WILLIAM  A.  BEACH 


4^6 

human  blessing  is  secured  to  him  for  a moment;  it  is,  that,  if  ac« 
cused  of  federalism,  or  moderatism,  or  incivism,*  or  whatever  else 
the  changing  fashions  and  factions  of  the  day  shall  have  lifted  up 
into  high  treason  against  the  State,  he  must  see  his  friends,  his 
family,  and  the  light  of  heaven  no  more — the  accusation  and  the 
sentence  being  the  same,  following  one  another  as  the  thunder  pur- 
sues the  flash.”  * 

1 deny  the  necessity.  I maintain  the  ability  of  the  Constitution 
to  support  itself.  Upon  it  this  government  can  stand,  defiant  of 
all  adversity.  It  is  the  fertile  source  of  prosperity  in  war  as  well 
as  peace.  In  all  emergencies  it  reconciles  the  high  prerogatives  of 
government  with  the  personal  privileges  of  citizenship.  It  makes 
these  to  harmonize  and  co-operate  in  all  the  diversities  of  its  ex- 
perience. It  is  only  when  the  constitutional  relation  between  the 
government  and  the  citizen  is  disturbed,  that  disorder  ensues. 
Maintain  that  inviolate,  restrict  power  to  its  prescribed  sphere,  at- 
taching to  it  thus  the  hopes  and  interests  of  the  people,  and  you 
give  to  this  nation  immortal  life. 

17.  The  doctrine  of  suspending  the  Constitution  novel 

AND  STARTLING. 

I appeal  from  the  present  to  the  past,  from  the  learned  judge 
advocate  to  the  venerated  sages  of  America,  from  the  war  of  to-day 
to  those  of  history.  If  I remember  aright,  this  government  en- 
countered some  stringent  necessities  in  the  war  of  1812.  Patriotism, 
in  a certain  quarter,  now  intensely  loyal,  was  not  as  fervid  then. 
The  heresy  of  secession  was  more  than  dreamed  of  in  those  early 
days,  north  of  Mason  and  Dixon’s  line.  We  were  in  our  youth, 
struggling  with  the  giant  of  nations;  but  the  grand  specific  of  the 
learned  judge  advocate,  through  a suspension  of  the  Constitution, 
was  not  then  administered.  The  necessity  was  dire  enough.  The 
embargo  sat  heavily  upon  New  England,  and  she  did  more  than 
mutter;  but  the  Constitution  was  unshaken,  and  the  war  was  glori- 
ous. The  modern  invention  of  abrogating  and  reinstating  the  or- 
ganic law,  the  idea  that  the  Constitution  could  exist  in  suspended 
animation,  dandled  in  the  arms  of  military  terrorism,  had  not  then 
been  discovered;  it  was  too  near  the  cradle  of  the  republic. 

18.  Provisions  of  the  Constitution  sufficient  for  every 

POLITICAL  POSSIBILITY. 

It  will  be  difficult  to  mention  any  necessary  operation  of  war 
’ Howell’s  State  Trials,  vol.  24,  p.  878. 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


467 


upon  civil  rights  not  embraced  by  the  qualifications  of  the  Consti- 
tution. The  learned  judge  advocate  referred  to  the  deprivation  of 
trial  by  jury,  forgetting  that  by  the  Constitution  the  right  is  with- 
held from  the  military  and  naval  forces  when  in  actual  service.  I 
do  not  stop  to  urge  the  implication  springing  from  this  express 
provision.  The  power  to  raise  armies  and  wage  war  carries  all 
authority  necessary  to  do  so  effectually.  The  unavoidable  inci- 
dents of  war  accompany  its  existence.  By  the  declaration  of  the 
Constitution,  government  possesses  all  powers  necessary  to  render 
effective  those  specifically  granted.  What  need,  then,  to  assail  the 
Constitution  ? Whenever  actual  necessity  requires  the  sacrifice  of 
private  property,  or  individual  right,  the  Constitution  authorizes  it. 
Why,  then,  inculcate  the  pernicious  notion  that  it  is  unequal  to  its 
great  office;  that  the  vigor  which  has  borne  it  gallantly  through 
two  foreign  conflicts,  is  unable  to  subdue  the  rebellious  outbreaks 
of  its  own  subjects?  It  has  become  fashionable  to  decry  its 
merits.  We  have  lost  our  veneration  for  the  political  parent  which 
has  nursed  and  protected  our  infancy  and  glorified  our  manhood. 
We  have  grown  too  large  and  strong  for  constitutional  restraint. 
It  needs  but  the  doctrine  of  the  learned  judge  advocate  to  disen- 
cumber our  maddened  passions  and  ambitions  of  all  embarrass- 
ment, and  leave  us  to  that  career  of  political  profligacy  which  pro- 
phesied and  accomplished  the  fate  of  the  old  republics. 

19.  All  constitutional  authority  clearly  defined. 

I have  claimed  for  government  the  broadest  incidental  powers. 
I believe  the  Constitution  expansive  enough  for  all  the  possibilities 
it  may  meet.  This,  by  no  means,  concedes  that  these  powers,  when 
their  exertion  is  demanded,  are  to  remain  inexplicit  and  indefinite, 
dependent  upon  the  caprice  of  military  captains  or  the  arbitrary 
will  of  the  executive.  They  mainly  appertain  to  Congress.  So  far 
as  concerns  the  necessities  of  war,  they  have  been  expressed  and 
methodized  by  legislative  act  and  the  law  of  nations.  The  articles 
of  war  defineTheir  quality  and  regulate  their  exercise;  the  modes 
by  which  they  operate,  the  agencies  through  which  they  act,  are  all 
nominated,  and,  beyond  these,  they  remain  unexerted  in  the  hands 
of  Congress.  The  most  superficial  student  knows,  that  in  a repre- 
sentative, constitutional  government,  its  officers  have  no  undefined, 
discretionary  authority,  undelegated  by  the  Constitution  or  the 
legislature.  All  official  power  must  originate  from  these;  and  this 


468 


ARGUMENT  OF  WILLIAM  A.  BEACH 


is  the  radical  distinction  between  our  own  system  and  the  simple 
monarchies  of  Europe.  When  it  shall  become  the  expressed  will 
of  the  people  to  eradicate  this  difference,  and  not  till  then,  will  the 
theory  of  the  learned  judge  advocate  be  accepted  by  American 
law  or  by  popular  favor. 


20.  Case  of  Vallandigham  distinguished. 

It  has  been  said  that  the  opinion  of  Judge  Leavitt,  in  the  case 
of  Vallandigham,  intimates  it.  On  the  contrary,  its  reasoning  and 
avowals  are  in  direct  opposition  to  it.  The  judge  says  (p.  263): 

“ In  my  judgment,  when  the  life  of  the  republic  is  threatened,  he 
mistakes  his  duty  and  obligation  as  a patriot,  who  is  not  willing  to 
concede  to  the  Constitution  such  a capacity  of  adaptation  to  cir- 
cumstances as  may  be  necessary  to  meet  a great  emergency  and 
save  the  nation  from  hopeless  ruin.” 

It  is  the  flexible  quality  of  the  Constitution,  adapting  itself  to 
the  emergencies  of  war,  or  rather,  it  is  its  sagacious  foresight, 
anticipating  and  providing  for  them,  to  which  the  judge  appeals. 
He  concedes  both  its  obligation  and  its  efliciency.  He  counte- 
nances no  such  abomination  as  a suspension  of  “ the  great  mass  ” of 
its  powers.  Again  he  says  (p.  266)  : 

‘‘  In  time  of  war  the  President  is  not  above  the  Constitution, 
but  derives  his  power  expressly  from  the  provision  of  that  instru- 
ment, declaring  that  he  shall  be  commander-in-chief  of  the  army 
and  navy.  * * * occasion  which  justifies  the  exer- 

cise of  this  power,  exists  only  from  the  necessity  of  the  case;  and 
when  the  necessity  exists,  there  is  a clear  justification  of  the  act. 
If  this  view  of  the  power  of  the  President  is  correct,  it  undoubt- 
edly implies  the  right  to  arrest  persons  who,  by  their  mischievous 
acts  of  disloyalty,  impede  or  endanger  the  military  operations  of 
the  government.” 

These  sentiments  cannot  be  misunderstood  or  misapplied. 
They  recognize  the  supreme  obligations  of  the  Constitution,  and 
fortify,  with  singular  exactness,  the  considerations  I have  sub- 
mitted to  Your  Honors.  They  locate  the  war  power  of  the  govern- 
ment in  the  Constitution.  They  do  more.  They  justify  its  exer- 
cise against  civil  right  only  “ from  the  necessity  of  the  case.”  They 
confine  military  arrests  to  those  persons  “ who,  by  their  mischiev- 
ous acts  of  disloyalty,  impede  or  endanger  the  military  operations 
^f  the  government.” 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


469 


21.  The  offenses  charged  not  hostile  to  the  military 

OPERATIONS  OF  THE  GOVERNMENT. 

When  Your  Honors  shall  find  an  imperative  necessity  requiring 
the  arrest  and  punishment  of  these  defendants;  when  any  act  shall 
have  been  proven  against  them,  impeding  or  endangering  the  mili- 
tary operations  of  the  government,  your  jurisdiction  may  be  ac- 
knowledged. But  where  is  the  necessity  ? and  how  have  my  clients 
interfered  with  military  action  ? The  great  and  manifest  distinction 
between  the  case  of  Vallandigham  and  this  is,  that  he  was  charged 
with  conduct  pernicious  to  the  discipline  of  the  army.  General 
Burnside,  in  his  statement  to  the  court,  vindicated  his  order  pre- 
cisely upon  this  ground.  The  charge  upon  the  military  commis- 
sion, was  “ declaring  disloyal  sentiments  and  opinions,  with  the  ob- 
ject and  purpose  of  weakening  the  power  of  the  government  in  its 
efforts  to  suppress  an  unlawful  rebellion.” 

What  analogy  is  there  in  the  two  examples  ? Have  these  de- 
fendants propagated  disloyalty,  fomented  dissension,  alienated  the 
patriotism  of  the  army,  or  disturbed  its  harmony  ? Not  at  all. 
Your  Honors.  They  were  the  commissioned  agents  of  New  York 
in  ministering  to  the  wants  of  her  soldiery.  Their  efforts  were 
auxiliary  to  the  government  and  in  aid  of  the  effectiveness  of  the 
army.  They  are  charged  with  no  design  or  act  hostile  to  military 
operations.  No  treasonable  sentiment  is  imputed  to  them.  If  the^ 
did  all  of  which  they  are  accused,  they  have  violated  no  military 
order,  endangered  no  military  enterprise,  tampered  with  no  mili- 
tary obligation.  Be  he  a traitor  or  a patriot,  they  are  not  fit  asso- 
ciates for  Vallandigham;  his  fate  furnishes  no  precedent  for  their 
condemnation.  This  prosecution  remains  unprecedented  and  un- 
paralleled. It  stands  upon  no  sure  foundation  of  principle  or  ex- 
ample. It  appeals  to  no  impulse  of  patriotism.  You  seek,  in  ne- 
cessity, some  apology  for  its  merciless  cruelty,  and  find  none.  These 
defendants  have  tasted  the  bitterness  of  a felon’s  captivity,  felt  the 
dishonoring  and  savage  rigor  of  military  infliction,  isolated  from 
the  amenities  and  sympathies  of  social  life.  Justice  demands  a 
reason  for  this  barbarous  invasion  of  constitutional  right.  What 
imminent  danger  impended  ? What  interest  of  State  was  imperiled  ? 
What  clamoring  exigency  exacted  the  sacrifice?  None,  Your 
Honors,  none.  They  are  the  powerless  victims  of  authority  mis- 
chievously perverted,  hopeless,  save  in  the  dignified  independence 
and  impartial  justice  of  this  honorable  Court. 


470 


ARGUMENT  OF  WILLIAM  A.  BEACH 


22.  Whether  defendants  can  be  punished  under  the 
State  law  immaterial. 

It  has  been  further  argued  that  New  York  cannot  punish  these 
defendants  for  offenses  against  her  laws,  committed  beyond  her 
territorial  jurisdiction.  I differ  with  the  learned  prosecutor  upon 
the  abstract  proposition,  although  it  is  not  involved  in  this  case. 
The  prisoners  are  citizens  of  New  York,  owing  obedience  to  her 
authority.  They  were  acting  under  her  laws  and  in  reference  to 
her  interests,  and  it  may  well  be  insisted  that  the  obligation  of  her 
statutes  followed  them  everywhere.  It  is  not,  however,  needful  to 
discuss  the  question.  New  York,  at  least,  can  punish  crimes  orig- 
inated abroad,  but  consummated  within  her  limits.  If  the  offense 
be  set  on  foot  here,  but  effected  or  continued  there,  she  has  ample 
power  to  deal  with  the  offender.  Nor  is  it  requisite  that  the  crim- 
inal act  should  have  been  personally  performed  by  the  accused, 
within  her  boundaries.  It  is  sufficient  that  he  instigated  or  assisted 
its  performance.  If  he  planned  outside,  and  another  executed 
within  her  borders,  he  is  accessary  and  liable.  The  injury  is  in- 
flicted there,  and  he  aided  in  its  infliction.  Nothing  more  is  nec- 
essary than  that  he  be  brought  within  her  actual  control. 

The  argument,  at  least,  is  but  a lame  apology  for  the  inter- 
meddling of  military  courts  with  civil  obligations.  Your  Honors 
cannot  derive  jurisdiction  from  the  mere  absence  of  authority  else- 
where to  punish.  This  Court  is  not  charged  with  the  duty  of  sup- 
plying the  imperfections  of  the  law.  It  is  more  important  to  de- 
termine how  much  power  Your  Honors  possess,  than  how  little  be- 
longs to  New  York.  The  weakness  of  her  jurisdiction  does  not 
strengthen  yours;  and  if  Your  Honors  shall  undertake  to  pursue  all 
offenses  which  would  otherwise  escape  “ unwhipped  of  justice,” 
your  judicial  functions  have  a remarkable  origin  and  will  have 
abundant  exercise. 

23.  Duty  of  government  to  protect  its  soldiers 

CONSIDERED. 

The  learned  judge  advocate  justifies  the  proceedings  before  this 
Court  upon  still  another  ground.  He  affirms  it  to  be  the  “ duty  ” 
of  government  to  protect  the  rights  of  its  soldiers,  and  from  this 
he  deduces  the  power  to  punish  by  court-martial  frauds  upon  his 
electoral  privilege.  I am  at  a loss  to  perceive  how  this  “ duty  ” is 
imposed.  Government  cannot  gratuitously  assume  it,  and  thus 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


471 


gain  jurisdiction  over  civilians  and  their  rights.  The  duty  must  be 
compulsory  or  undertaken  in  obedience  to  law;  otherwise,  by  vol- 
untary and  officious  assumption  of  “duty,”  government  might  in- 
vest itself  with  the  most  arbitrary  powers,  and  absorb  in  one  de- 
partment the  functions  of  all.  This  is  vitally  opposed  to  the 
protective  principle  of  our  institutions.  They  rest  upon  a division 
of  authority,  upon  multiplied  responsibilities,  upon  a watchful  sys- 
tem of  checks  and  balances  hostile  to  centralization. 

The  idea  of  the  learned  judge  advocate  is  not  altogether  vision- 
ary. Undoubtedly  government  owes  a duty  to  its  soldiers,  but  it 
relates  exclusively  to  their  rights  in  that  special  character,  and 
which  grow  immediately  out  of  their  military  relations.  It  orig- 
inates from  military  character,  and  must  be  confined  to  military 
subjects.  If  not,  the  superintending  care  of  government  must  nec- 
essarily overspread  all  the  business  and  social  interests  of  each 
officer  and  private  in  the  army.  If  it  extends  at  all  beyond  strict 
military  associations,  it  must  be  comprehensive  and  complete.  It 
cannot  be  restricted  to  New  York  soldiers  and  frauds  upon  her 
election  laws.  If  the  discharge  of  this  universal  duty  has  fallen 
upon  Your  Honors,  you  must  be  endowed  with  general  jurisdiction, 
both  civil  and  criminal.  If  you  protect  the  soldier  in  the  enjoy- 
ment of  his  electoral  right  simply  because  he  is  a soldier,  you  must, 
for  the  same  reason,  protect  all  others.  If  you  punish  wrongs  to 
one,  you  must  as  to  all.  You  must  defend  his  rights  of  property 
and  pursue  the  thief  who  filches  his  purse,  the  gambler  who  robs, 
and  the  confidence  man  who  defrauds  him.  Your  Honors  must  not 
forget  his  matrimonial  privileges.  You  must  frown  upon  seduction 
and  adultery,  and  amuse  yourselves  with  actions  for  criminal  con- 
versation. 

24.  Jurisdiction  of  the  court  must  arise  from  positive  law. 

Surely,  the  authority  of  this  Court  cannot  depend  upon  such 
reasoning.  It  is  held  by  no  such  absurd  tenure.  You  are  a court 
of  law,  like  as  any  other  court  known  to  the  country.  You  must 
find  your  jurisdiction  in  the  Constitution,  and  in  acts  of  Congress 
passed  in  accordance  with  it.  You  can  gain  it  rightfully  from  no 
other  source.  It  would  be  lamentable,  indeed,  if  Your  Honors  were 
driven  to  follow  the  learned  judge  advocate,  in  his  devious  search, 
after  authority  for  this  proceeding.  Powers,  such  as  you  wield, 
should  have  no  dubious  origin.  They  lay  strong  hold  upon  the 
liberty  and  life  of  the  citizen.  They  fall  with  sudden,  resistless, 


472 


ARGUMENT  OF  WILLIAM  A.  BEACH 


merciless  energy.  The  doom  is  arbitrary,  the  execution  summary. 
They  should  be  exerted  upon  no  doubtful  occasion.  They  should 
trace  their  descent  lineally  and  legitimately  from  legal  parentage. 
Before  Your  Honors  shall  judge  these  accused,  claiming  the  rights 
of  private  citizenship,  appealing,  as  they  do,  to  the  sacred  guardian- 
ship of  the  civil  law,  to  the  constitutional  privilege  of  trial  by  jury, 
in  due  course  of  law,  you  will  examine  your  judicial  lineage,  and 
see  to  it  that  you  exercise  no  spurious  authority.  The  occasion 
has  become  too  marked  and  conspicuous  for  inconsiderate  action. 
It  looks  toward  consequences  too  serious  for  indifferent  unconcern. 

I submit  to  Your  Honors  this  jurisdictional  question  with  an 
assured  confidence,  although  I feel  how  unequal  to  the  great  theme 
my  argument  has  been.  I have  not  specifically  spoken  of  the  con- 
stitutional provisions  regulating  the  forms  of  proceeding  in  criminal 
prosecutions,  nor  of  the  clear  intendments  springing  from  the  act 
of  1863.  I have  preferred  to  meet  this  issue  in  the  limited  mode  I 
have  pursued.  I have  sought  to  impress  upon  Your  Honors  the 
ardent  convictions  of  my  own  mind,  and  lead  your  judgments  to  a 
wise  conclusion.  Notwithstanding  your  adverse  prepossessions,  I 
have  faiJi  in  the  sober  reflections  of  the  righteous  judge;  I have 
faith  in  the  educated  intelligence,  the  constitutional  instincts  of  this 
honorable  Court,  and  look  to  them  hopefully  to  acknowledge  the 
rights  of  American  citizenship. 

25.  Questions  of  fact  involved. 

My  duty,  nevertheless,  requires  a discussion  of  the  issues  of 
facts  arising  from  the  evidence.  I might  well  have  rested  this  de- 
fense upon  the  poverty  of  the  accusing  proof.  My  clients  need  no 
shelter,  other  than  their  innocence,  against  the  asserted  jurisdiction 
of  this  Court.  Upon  this  they  have  rested  with  quiet  assurance, 
while  the  unlimited  power  of  this  government  has  exhausted  itself 
in  spasmodic  efforts  to  discover  proof  of  guilt.  Always  ready,  they 
have  endured  the  ignominy  and  distress  of  a loathsome  imprison- 
ment, while  this  trial  has  been  prolonged  by  a frantic  and  fruitless 
pursuit  of  criminating  testimony.  The  public  prosecutor  has 
thrown  his  official  dragnet  over  the  State  of  New  York,  subsidized 
private  malice  and  partisan  hate,  agitated  every  cess-pool  of  polit- 
ical garbage  in  his  implacable  purpose  to  convict.  The  judgment 
of  every  thoughtful  observer,  the  public  sense  of  the  community, 
disapproved  this  prosecution.  Indignant,  as  all  true  citizens  were, 
at  the  suspicion  of  attempted  fraud  upon  the  elective  franchise, 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  473 


popular  conviction,  long  ago,  exonerated  these  defendants. 
Magnanimous  justice  would  have  accepted  the  general  verdict; 
but  the  overheated  zeal  of  the  prosecutor,  the  peril  of  at  once  ad- 
mitting the  falsehood  and  folly  of  this  accusation,  inspired  anew 
the  flagging  zeal  which,  for  its  own  safety,  sought  a victim.  These 
defendants  have  been  tortured  with  the  severest  prison  regimen,  in 
the  merciless  hope  that  desperate  means  would  supply  a justifica- 
tion. This  trial  has  been  delayed,  not  to  procure  known  evidence, 
but  to  hunt  it  down.  Suspicion  alone  dictated  the  charge;  indus- 
try was  to  obtain  the  needful  testimony,  and,  in  the  meantime,  a 
gentleman  of  cultivated  associations,  distinguished  for  probity  and 
position,  must  await  in  prison  the  tardy  advance  of  his  accuser. 
True,  the  spontaneous  sympathy  of  the  just  and  good  has  cheered 
him.  From  political  friend  and  political  foe,  his  unmerited  suffer- 
ing has  drawn  prompt  and  hearty  testimonials  to  his  integrity.  It 
is  none  the  less  lamentable  that  such  a scene  should  have  been 
enacted  at  the  center  of  national  authority,  at  the  culminating 
point  of  highest  law  and  loftiest  power.  Speedy  trial  is  due  to  in- 
nocence, speedy  judgment  to  guilt.  Government  owes  to  its  sub- 
jects protection  against  inquisitorial  prosecutions.  If  the  benign 
provisions  of  the  Constitution  to  this  end  are  to  be  “suspended,*' 
if  the  established  tribunals  of  the  country  are  to  be  superseded, 
humanity  cries  aloud  against  the  iniquity  which  executes  before  it 
condemns.  Probable  cause  alone  justifies  the  humiliating  incar- 
ceration of  a citizen.  When  it  shall  be  tolerated,  that  military  offi- 
cials may  arrest  upon  suspicion  and  imprison  at  will,  the  worst  of 
tyranny  will  be  felt,  because  it  is  the  tyranny  of  abused  law. 

What,  after  all,  has  been  accomplished  by  these  unparalleled 
efforts  of  the  government?  It  is  the  power  of  the  United  States, 
with  its  host  of  satellites  and  its  prodigal  treasures,  directed  by  this 
rancorous  purpose,  arrayed  against  the  simple  citizen  powerless  in 
his  cell.  What  wonder  if  this  mighty  influence  should  prevail  over 
individual  weakness!  We  are  not  ignorant  of  the  insidious  re- 
sources of  towering  dominion.  It  finds  zealous  sycophants. 

Ready  instrumentalities  are  tendered  to  its  service.  Obsequious 
parasites  divine  its  wishes  and  pander  to  their  gratification.  This 
is  a government  prosecution.  The  majesty  of  the  accuser  intensi- 
fies the  charge.  The  destined  victim  is  a prominent  citizen  of  hij 
native  State,  more  deeply  obnoxious  from  his  distinction.  The 
crime  alleged  is  an  atrocious  attempt  to  deprave  the  vital  principle 
of  our  free  institutions.  Who  will  deny  that  the  gravest  delibera- 


m 


ARGUMENT  OF  WILLIAM  A.  BEACH 


tion,  the  most  cautious  investigation,  should  precede  the  spectacle 
this  proceeding  exhibits  ? Who  could  anticipate  from  it  “ a most 
lame  and  impotent  conclusion  ” which  provokes  the  ridicule  and 
scorn  of  the  world  ? 

I cannot  anticipate  the  judgment  of  this  Court;  but  in  the  in- 
stincts of  a common  manhood,  I may  believe  that  Your  Honors 
cannot  but  feel  how  pitiful  is  the  denouement  of  this  miserable 
tragedy. 

If  all  be  conceded  that  the  most  embittered  malice  can  claim 
from  the  proof,  what  is  the  magnitude  of  the  crime  which  has  so 
aroused  the  vindictive  energies  of  the  government  ? Frightful  de- 
velopments of  gigantic  frauds  were  promised.  The  press  and  the 
rostrum,  with  glaring  italics  and  vehement  denunciation,  paraded 
the  coming  revelation.  The  frenzy  of  political  zeal  was  maddened 
with  spectral  visions  of  ponderous  “boxes”  and  flitting  shapes, 
ominous  of  political  ruin.  The  State  agency  of  New  York,  mar- 
shalled by  Col.  North,  with  huge  and  stealthy  fraud,  were  corrupt- 
ing the  whole  franchise  of  the  Union,  and  the  startled  country 
seemed  to  see  the  fabric  of  government  tottering  to  its  fall.  Truly, 
the  mountain  heaved  in  painful  labor.  Your  Honors  are  witnesses 
to  the  royal  delivery,  and  are  to  christen  the  contemptible  progeny. 

This  State  prosecution  claims  to  have  revealed  the  astounding 
fact,  that  a dozen  preparatory  forms  for  soldiers’  votes  were  signed 
and  certified  in  blank,  by  a competent  officer,  to  be  executed  by 
the  voter  at  need.  With  ostentatious  fraud  they  were  spread  upon 
a public  table,  in  the  absence  of  the  official  who  alone  could  prop- 
erly employ  them;  and  the  evidence  fails  to  show  a single  instance 
of  their  effectual  use.  There  is  not  the  slightest  proof  of  a single 
false  ballot  deposited.  It  is  pretended  that  these  forms  were  pre- 
served for  an  emergency.  It  is  a false  pretense;  but,  if  true,  they 
were  not  used.  The  diligence  of  the  learned  judge  advocate  has 
succeeded  in  raising  a suspicion  that,  during  the  entire  canvass, 
three  attempts  were  made  by  somebody  to  change  soldiers’  votes. 
How  and  by  whom  made  is  at  the  best  problematical,  but  they  all 
signally  failed. 

In  its  utmost  latitude,  this  is  the  “ head  and  front  of  the  offend- 
ing— no  more.”  That  it  was  not  even  this,  I hope  to  demonstrate.-. 
But  grant  it  this,  how  far  short  it  is  of  criminality,  how  infinitely 
disproportioned  to  the  direful  prelude  and  the  wearisome  perform- 
ance! What  stately  dignity  invests  the  government  of  the  United 
States,  presiding  at  this  momentous  accouchement. 


IX  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


475 


Here  Mr.  Beach  reviewed  in  detail  the  testimony  to  show  that  the  defend- 
ants were  entitled  to  an  acquittal  on  the  evidence.  In  discussing  the  alleged 
confession  of  guilt  by  Jones,  one  of  the  defendants,  made  in  the  absence  of  the 
others,  he  contended  that  it  was  not  evidence  against  them,  on  the  ground  that 
the  declarations  of  a conspirator  are  not  competent  against  his  fellow-conspira- 
tors, unless  made  in  pursuit  of  a common  design,  which  must  be  first  clearly 
established,  citing  from  the  opinion  of  Chief  Justice  Marshall  on  the  trial  of 
Aaron  Burr  (Burr’s  Trials,  pp.  93-96).  He  contended,  further,  that  it  did  not 
implicate  Col.  North,  and  that  to  convict,  all  the  circumstances  must  be  incon- 
sistent with  the  theory  of  innocence,  citing  from  the  opinion  of  Chief  Justice 
Shaw  in  the  case  of  Prof.  Webster  (5  Cush.  p.  317).  After  reviewing  the  evidence 
of  all  the  witnesses,  he  continued  ; 

If  Your  Honors  please,  this  comprises,  in  detail,  all  the  evidence, 
direct  and  remote,  against  Col.  North.  It  is,  with  no  sentiment  of 
disrespect  to  this  Court,  that  I express  my  amazement  that  he 
should  be  still  held  as  a criminal.  However  just  his  original  arrest 
may  have  seemed;  whatever  colorable  suspicions  or  fears  may  have 
instigated  it;  surely,  after  the  developments  of  this  trial,  the  in- 
structed justice  of  this  government  should  have  given  him  an 
honorable  discharge.  I do  not  reflect  upon  its  exertion  by  the 
statement  that  he  has  been  pursued  by  the  keenest  vigilance. 
Grant  that  it  was  due  to  the  nature  of  the  accusation.  He  has 
suffered,  in  advance,  the  doom  of  the  convicted  malefactor.  Make 
no  question  as  to  its  severity.  But,  Your  Honors,  is  justice  to  be 
ever  relentless  ? Is  the  fable  true,  that  she  is  the  blind  deity,  smit- 
ing with  indiscriminate  slaughter,  careless  of  her  victims,  if  but  her 
gluttony  of  death  be  satiated?  No!  Your  Honors.  If  she  be  the 
vengeful  executioner  of  guilt,  she  is,  likewise,  the  strong-armed 
savior  of  innocence.  Her  watchful  eye  pierces  the  murky  cloud  of 
circumstance,  searches  the  mazy  web  of  artful  contrivance,  until 
she  grasps  the  sure  and  steady  arm  of  her  majestic  handmaid — 
truth.  Seek  truth.  Your  Honors.  Rest  your  unwavering  justice 
upon  it,  not  upon  the  frail  and  staggering  foundation  of  misty 
doubts  and  unsteady  suspicions. 

26.  Private  character  of  Colonel  North. 

And  if  Your  ITonors  are  still  unconvinced,  regard  the  spotless 
character  of  the  man  you  judge.  It  is  an  unsoiled  mantle  of  pur- 
ity wrapping  its  protecting  folds  around  his  whole  life.  An  ami- 
able and  accomplished  gentleman,  endeared  to  his  friends;  an  un- 
tarnished merchant  and  officer,  honored  by  the  world;  an  ardent, 
but  stainless  politician,  respected  by  his  adversaries,  he  appeals  to 


476 


ARGUMENT  OF  WILLIAM  A.  BEACH 


the  congenial  instincts  of  his  judges.  Had  guilt  been  proven,  even 
his  unblemished  name  would  not  save  him;  but,  in  the  sometimes 
subtle  entanglement  of  malicious  circumstance  encompassing  the 
good  man  with  shadows,  he  may  confidently  and  proudly  point  to 
his  blameless  reputation.  I repel  the  idea  that  there  is  an  atom  of 
proof  from  which  the  foulest  hate  can  hatch  suspicion.  But  if 
there  were,  I meet  it  with  an  invulnerable  character  and  defy  its 
venom.  Once,  at  least,  it  saves  from  doubtful  circumstance.  It 
can  but  once;  for  even  defeated  accusation  leaves  its  enduring 
taint.  The  memory  of  this  trial  will  cling  to  Col.  North,  ever  sup- 
plying malice  with  its  poison.  Your  judgment  may  acquit  him,  but 
he  has  been  suspected  and  accused,  and  that,  with  censorious 
rumor,  is  guilt. 

His  fate,  Your  Honors,  is  in  your  hands.  All  of  honor  he  has 
won  in  the  past,  all  of  hope  he  has  for  the  future,  awaits  your  de- 
cision. The  State  whose  representative  he  is,  the  troops  of  friends 
whose  devoted  faith  attests  his  innocence,  loving  kindred  who  lean 
upon  him  in  gentle  affection:  all  implore  you  to  give  him  true  de- 
liverance. United  with  their  voices,  not  in  supplication  but  in 
mandate.  Your  Honors  hear  the  loud  and  decisive  tones  of  legal 
privilege  and  constitutional  immunity.  There  have  been  times 
when  all  these  were  unavailing  to  redeem  from  the  fires  of  persecu- 
tion. Their  bloody  track  along  the  annals  of  history  stands  as  a 
warning,  not  as  an  example.  Succeeding  them  is  traced  the 
magnificent  struggle  of  professional  genius  with  the  minions  of 
royal  prerogative,  and  then  came  the  triumph  of  disenthralled  hu- 
manity; and,  still  onw^ard,  the  growing  illumination  of  American 
progress  has  lighted  the  pathway  of  civilization.  I pray  you,  let 
not  the  record  be  dishonored  by  the  faltering  virtue  of  our  judi- 
ciary. It  is  enough  that  the  bold  front  of  treason  defies  the  Con- 
stitution; let  it  not  be  defiled  in  the  holy  tabernacle  of  the  law. 

Here  Mr.  Beach  reviewed  the  evidence  in  regard  to  the  defendant  Cohn,  to 
show  that  nothing  fraudulent  or  criminal  had  been  proven  against  him.  After 
referring  to  the  testimony  as  to  his  good  character,  and  analyzing  the  statements 
of  each  of  the  witnesses  against  him,  he  continued  : 

If  Your  Honors  please,  I have  thus  analyzed  the  proofs  and 
given  them  appropriate  application.  I may  have  misconceived 
their  character  and  misjudged  their  force;  but  I submit  them  to 
the  judgment  of  this  Court  without  apprehension,  and  to  the  intel- 
ligence of  the  country  without  misgiving.  Acknowledging,  but  not 


IX  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS. 


477 


fearing  the  ability  of  my  learned  adversary,  without  arrogance,  but 
with  boldness,  I challenge  all  dispute  of  the  conclusions  I have 
established.  I demand  legal  deliberation  and  logical  results,  not 
the  vapid  demagogueism  and  unreasoning  prejudice  of  a political 
conclave.  My  clients  are  to  answer  in  a court  of  law  for  their 
proven  acts,  not  to  a party  caucus  for  suspected  wrong.  Your 
Honors  are  judges,  not  partisans,  and  I may  expect  that  my  learned 
friend  will  demonstrate,  not  denounce.  He  is  fully  able  to  discuss 
this  case  with  the  learning  and  candor  of  the  true  lawyer.  It  will 
demand  his  highest  qualities.  Although  he  has  not  considered  it 
his  duty  to  yield  to  my  clients  a proper  acknowledgment  of  their 
innocence,  he  will,  I am  persuaded,  grant  them  the  fairness  of  an 
honorable  debate. 

Here  Mr.  Beach  compared  the  evidence  with  the  charges  and  specifications, 
to  show  that  the  evidence  was  upon  authority  wholly  insufficient  to  sustain  them, 
and  cited  O’Brien  on  American  Military  Law,  pp.  192,  265,  and  De  Hart  on 
Courts-martial,  p.  298.  He  then  continued  : 

It  is  only  when  Your  Honors  pass  the  pitiable  insignificance  of 
the  proof,  that  the  real  greatness  of  this  issue  appears.  It  is  then 
you  enter  the  atmosphere  of  loftiest  thought,  loaded  with  the  genius 
and  wisdom  of  the  mighty  past,  pregnant  with  the  issues  of  the 
mightier  future.  You  tread  sanctified  ground,  and  there  your 
weighty  responsibility  begins. 

27.  Interest  and  importance  of  the  issues  in  the  case. 

You  see  how  this  case  mingles  with  the  great  topics  of  govern- 
mental power  which  have  stirred  the  heart  of  the  world  since  the 
endless  struggle  began  between  liberty  and  oppression.  You  can- 
not, if  you  would,  belittle  it.  It  is  not  alone  the  fate  of  these  de- 
fendants you  are  to  decide.  Strange  as  it  may  seem,  here — even 
here,  before  a military  commission,  the  legal  representative  of  the 
government  of  the  United  States  demands  a judgment  affirming 
the  suspension  of  the  Constitution.  He  seeks  the  liberty,  if  not 
the  lives  of  these  defendants,  over  the  shattered  fragments  of  lib- 
erty and  law.  The  issue  is  sharply  made  between  the  government 
and  the  citizen.  The  learned  judge  advocate  concedes,  argument- 
atively, that  he  can  reach  the  accused  only  through  a broken  Con- 
stitution. Your  Honors  must  approve  his  amazing  doctrines,  or 
you  must  acquit.  I know  not  how  potentially  your  decision  may 
affect  the  future  history  of  the  country;  I do  know  that,  whatever 
that  history  may  become,  you  may  have  the  proud  satisfaction  of 


478 


ARGUMENT  OF  WILLIAM  A.  BEACH 


linking  your  names  nobly  with  the  fate  of  constitutional  freedoia. 
It  may  be  that  the  forebodings  of  many  good  men  are  but  the 
childish  fears  of  a timid  conservatism.  The  lessons  of  the  past 
may  be  reversed;  triumphant  power  may  surrender  its  victories 
over  violated  right,  and  restore  a mangled  Constitution;  but,  Your 
Honors,  it  is  not  for  you  to  speculate  upon  the  desperate  venture. 
As  a court  you  will  administer  the  supreme  law,  temporizing  with 
no  considerations  of  expedienoy,  fearless  of  all  dictation,  animated 
only  by  an  unswerving  love  of  justice. 

It  cannot  be  concealed  that  this. cause  derives  further  interest 
from  its  conflict  with  the  claimed  power  of  the  State  of  New  York. 
The  defendants  are  her  citizens.  The  law  violated,  if  any  has 
been  violated,  is  the  law  of  her  legislature.  The  offense,  if  any,  is 
against  her  sovereignty.  By  taunt  and  gibe  and  innuendo,  her 
executive  has  been  assailed,  and  the  purity  of  her  elective  franchise 
has  been  impeached.  These  have  been  justified  by  the  revelations 
of  this  trial.  The  calumnies  of  a reckless  partisanship  have  been 
refuted  by  the  clearest  demonstration.  They  answered  their  tem- 
porary purpose;  but  their  calculating  and  baseless  malice  has  been 
exposed.  It  remains  for  this  Court  to  recognize  and  acknowledge 
the  jurisdiction  of  the  State  of  New  York  over  these  defendants. 
She  claims  the  power  to  vindicate  her  own  majesty,  to  avenge  her 
own  laws,  and  purify  her  own  record.  She  asks  no  aid  from  the 
military  arm  of  this  government.  Competent  to  punish,  if  guilty, 
and  to  protect,  if  innocent,  she  demands  her  citizens  from  the 
hands  of  this  Court.  Your  Honors  may  heed  her  not.  In  the  flush 
of  armed  authority,  environed  by  the  pomp  and  circumstance  ” 
of  war,  her  remonstrating  voice  may  be  unheard.  She  raises  above 
her  persecuted  children  the  double  shield  of  the  Constitution  and 
her  own  sovereignty.  You  may  suspend  the  one  and  deride  the 
other;  but  your  judgment  must  meet  the  review  of  posterity,  if  it 
shall  escape  the  swift  retribution  of  the  present. 

And  why.  Your  Honors,  deny  her  claim  ? Is  the  justice  of  New 
York  distrusted  ? Is  her  loyalty  to  our  institutions  suspected  ? Is 
she  so  debauched  and  impotent  that  the  general  government,  by 
military  tribunals,  must  assume  to  vindicate  her  honor?  What 
overwhelming  State  necessity  demands  a remedy  so  revolutionary 
and  perilous  ? Is  the  army  endangered  ? Is  the  government 
shaken  ? Have  rebellion  and  anarchy  uprooted  the  constituted 
forms  of  peaceful  society?  Oh  no!  Your  Honors;  not  in  these 
must  you  seek  the  cause  of  this  unrighteous  prosecution.  It  is 


IN  DEFENSE  OF  SAMUEL  NORTH  AND  OTHERS.  479 


honored  by  no  love  of  country,  dignified  by  no  zealous  fear  for  her 
security.  It  is  all  selfish  and  malignant.  It  is  the  instrumentality 
of  despotism,  or  it  is  the  refuge  for  political  depravity.  It  may  be 
both;  but  whichever  it  is,  it  is  destined  to  ignoble  failure  and  per- 
petual malediction.  These  defendants  may  be  immolated,  but  the 
purpose  which  sacrifices  them  shall  not  be  secured.  The  rebound- 
ing vigor  of  the  Constitution,  the  elastic  vitality  of  the  law,  will 
ultimately  prevail.  Patriotism  may  sleep  on  in  its  strange  apathy; 
the  delusion  of  a vicious  prosperity  may  mislead  its  vigilance;  its 
deathless  love  for  the  Union  of  the  fathers  may  stifle  its  alarms; 
but  the  awakening  will  surely  come.  The  deadly  heresies,  infect- 
ing the  political  faith  of  the  people,  shall  be  uprooted  ; these 
daring  invasions  upon  republican  liberty  shall  be  rebuked  ; and 
then,  if  not  now,  my  clients  shall  be  vindicated  and  avenged. 


WITHOUT  LAW  THERE  IS  NO  SECURITY. 

JEREMY  BENTHAM. 

Law,  alone,  has  accomplished  what  all  the  natural  feelings  were  not 
able  to  do ; Law,  alone,  has  been  able  to  create  a fixed  and  durable 
position,  which  deserves  the  name  of  Property.  The  law,  alone,  could 
accustom  men  to  submit  to  the  yoke  of  foresight,  at  first  painful  to  be 
borne,  but,  afterwards  agreeable  and  mild  ; it  alone  could  encourage  them 
in  labor — superfluous  at  present,  and  which  they  are  not  to  enjoy  till  the 
future.  Economy  has  as  many  enemies  as  there  are  spendthrifts,  or  men 
who  would  enjoy  without  taking  the  trouble  to  produce.  Labor  is  too 
painful  for  idleness  ; it  is  too  slow  for  impatience  ; Cunning  and  Injustice 
underhandedly  conspire  to  appropriate  its  fruits  ; Insolence  and  Audacity 
plot  to  seize  them  by  open  force.  Hence  Society,  alwa);s  tottering,  always 
cureatened,  never  at  rest,  lives  in  the  midst  of  snares.  It  requires,  in  the 
legislator,  vigilance  continually  sustained,  and  power  always  in  action,  lo 
defend  it  against  his  constantly  reviving  crowd  of  adversaries. 

The  law  does  not  say  to  a man,  “ Work,  and  I will  reward  you  ; ’’  but 
it  says  to  him,  “ Work,  and  by  stopping  the  hand  that  would  take  them 
from  you,  I will  insure  to  you  the  fruits  of  your  labor,  its  natural  and 
sufficient  reward,  which,  without  me,  you  could  not  preserve.”  If  industry 
creates,  it  is  the  law  which  preserves ; if,  at  the  first  moment,  we  owe 
everything  to  labor,  at  the  second,  and  every  succeeding  moment,  we  owe 
ev  erything  to  the  law. 

In  order  to  form  a clear  idea  of  the  whole  extent  which  ought  to  be 
given  to  the  principle  of  security,  it  is  necessary  to  consider,  that  man  is 
not  like  the  brutes,  limited  to  the  present  time,  either  in  enjoyment  or 
suffering  ; but  that  he  is  susceptible  of  pleasure  and  pain  by  anticipation, 
and  that  it  is  not  enough  to  guard  him  against  an  actual  loss,  but  also  to 
guarantee  to  him,  as  much  as  possible,  his  possessions  against  future 
losses.  The  idea  of  his  security  must  be  prolonged  to  him  throughout  the 
whole  vista  that  his  imagination  can  measure. 

This  disposition  to  look  forward,  which  has  so  marked  an  influence 
upon  the  condition  of  man,  may  be  called  expectation — expectation  of  the 
future.  It  is  by  means  of  this  we  arc  enabled  to  form  a general  plan  of 
conduct;  it  is  by  means  of  this  that  the  successive  moments  which  com- 
pose the  duration  of  life  are  not  like  isolated  and  independent  points,  but 
become  parts  of  a continuous  whole.  Expectation  is  a chain  which  unites 
our  present  and  our  future  existence,  and  passes  beyond  ourselves  to  the 
generations  which  follow  us.  The  sensibility  of  the  individual  is  prolonged 
through  all  the  links  of  this  chain.  The  principle  of  security  compre- 
hends the  maintenance  of  all  these  hopes  ; it  directs  that  events,  inasmuch 
as  they  are  dependent  upon  the  laws,  should  be  conformed  to  the  expecta- 
tions to  which  the  laws  have  given  birth. — [ The  Principles  of  the  Civil  Code. 

[4801  , . 


ARGUMENT  OF  JEREMIAH  S.  BLACK 

In  Defense  of  the  Right  to  Trial  by  Jury. 

\Ex  parte  Milligan,  4 Wall.  2.] 

IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES, 
DECEMBER  TERM,  1866. 


Constitutional  Law. — Where  the  courts  are  open,  and  in  the 
proper  exercise  of  their  jurisdiction,  the  right  of  a citizen  to  a jury  trial, 
guaranteed  by  the  Constitution,  cannot  be  denied  or  abridged. 


Analysis  of  Mk.  Black’s  Argument. 


1.  Of  the  charges  against  the  relator,  and 

the  tribunal  by  which  he  was  con- 
victed. 

2.  The  commission  which  tried  the  relator 

illegal,  and  its  entire  proceedings  void 
for  want  of  jurisdiction. 

3.  Duty  of  the  court  to  discharge  the  peti- 

tioners shown. 

4.  The  trial  and  punishment  of  an  offense  is 

an  exercise  of  exclusive  authority,  con- 
ferred upon  express  conditions  and 
limitations. 

5.  Trial  by  jury  affords  the  best  protection 

for  innocence,  and  the  surest  mode  of 
punishing  guilt,  yet  discovered  among 
men. 

6.  Enumeration  of  the  rights  fir  the  pre- 

servation of  individual  liberty,  which 
form  part  of  the  organic  law. 

7.  Special  provisions  applicable  to  the  law 

of  treason. 

8.  Historical  retrospect  of  the  provisions 

which  to-day  secure  the  natural  rights 
of  man. 

9.  No  military  tribunal  has  power  to  try  a 

citizen  at  a place  where  the  courts  are 


open  — The  title  by  which  a jury  trial 
is  secured. 

10.  In  turbulent  t’mes  the  rights  of  the 

citizen  should  be  doubly  guarded. 

11.  Why  the  plea  of  necessity,  the  only  ex- 

c ’se  for  violating  law,  has  no  appli- 
cation to  the  case. 

12.  Necessity  could  but  excuse  a violation 

of  law,  but  cannot  impart  validity  to 
an  act  which  the  law  forbids. 

13.  Results  of  the  doctrine  that  trial  by  jury 

is  lost  to  the  citizen  during  the  exist- 
ence of  war. 

14.  The  rights  of  the  civil  authorities  have 

been  regarded  as  sacred  in  the  past. 

15.  Neither  the  law  of  nations,  nor  the  laws 

of  war,  have  any  bearing  on  the  case. 

16.  Legal  modes  possessed  by  the  govern- 

ment tor  protecting  itself  against 
danger. 

17.  A military  commission  an  anomaly  au- 

thorized by  no  law,  and  governed  by 
no  laws  of  its  own. 

18.  Military  commission  synonymous  with 

arbitrary  power. — Review'  of  the  va- 
rious modes  in  which  it  has  been  ex- 
ercised throughout  the  W’orld. 


Lambdin  P.  Milligan,  W.  A.  Bowles,  and  Stephen  Horsey,  during  the  war 
of  the  rebellion,  in  October,  1864,  were  arrested  by  order  of  General  Alvin  P. 
Hovey,  commanding  the  military  district  of  Indiana,  brought  before  a military 
commission  convened  at  Indianapolis,  tried  on  certain  charges  and  specifications, 
found  guilty,  and  sentenced  to  be  hanged.  Friday,  May  19th,  1865,  was  the  day 

[481] 


31 


482 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


fixed  for  their  execution.  The  charges  on  which  Milligan  and  his  associates  were 
convicted,  were  substantially  that  they  had  joined  and  aided  a secret  society 
known  as  the  “ Order  of  American  Knights,  or  Sons  of  Liberty,”  for  the  purpose 
of  destroying  the  government,  communicating  with  the  enemy,  conspiring  to 
seize  munitions  of  war  belonging  to  the  Union  forces,  and  to  liberate  rebel 
prisoners  confined  within  the  Federal  lines.  Nine  days  prior  to  the  time  fixed 
for  his  execution,  Milligan  applied  by  petition  to  the  Circuit  Court  of  the  Unit- 
ed States  for  his  discharge,  on  the  ground  that  his  imprisonment  and  detention 
were  unauthorized  and  illegal.  Upon  the  matters  presented  by  the  petition  the 
court  were  divided  in  opinion,  and  certified  the  following  questions  to  the 
Supreme  Court  of  the  United  States,  based  upon  all  the  facts  set  out  in 
the  record;  (i.)  Should  a writ  of  habeas  corpus  be  issued?  (2.)  Should  Milligan 
be  discharged  as  prayed  for?  (3.)  Had  the  military  commission  jurisdiction 
legally  to  try  and  sentence  the  petitioner  ? The  court  held  that  the  writ  would 
issue,  and  that  Milligan  was  entitled  to  his  discharge,  on  the  ground  that  the 
military  commission  was  unauthorized  and  illegal,  and  acquired  no  jurisdiction 
to  try  and  sentence  him.  Although  the  court  were  unanimous  in  their  judgment 
that  the  relator  should  be  discharged,  there  seemed  to  be  a difference  of  opinion 
as  to  the  power  of  Congress  to  establish  military  commissions.  In  view  of  this 
fact,  a separate  opinion  was  written  by  Chief  Justice  Chase,  which  was  concurred 
in  by  Justices  Swayne,  Wayne  and  Miller,  declaring  that  while  the  particular 
commission  which  sentenced  Milligan  was  not  authorized,  yet  the  power  of 
Congress  to  authorize  trials  for  crimes  against  the  security  and  safety  of  the 
national  forces  may  be  derived  in  time  of  war  but  not  in  peace,  from  its  author- 
ity to  raise  and  support  armies  and  to  declare  war,  if  not  from  its  Constitutional 
authority  to  provide  for  governing  the  national  forces.  Mr.  Justice  Davis  was 
the  organ  of  the  court,  and  delivered  the  opinion  of  the  majority  with  a power 
of  convincing  logic,  which  does  infinite  honor  to  his  name.  He  fully  adopted 
the  views  of  the  counsel  for  the  relator. 

This  defense  of  the  right  of  trial  by  jury  is  a marvelous  display  of  Judge 
Black’s  extraordinary  power  and  abilities  as  a lawyer,  and  the  enduring  import- 
ance of  the  subject  will  render  it  interesting  as  long  as  the  individual  liberty  of 
the  citizen  shall  be  preserved  as  part  of  the  frame-work  of  human  government. 
It  was  delivered  during  a period  of  great  political  excitement,  before  the  passions 
and  prejudices  stirred  up  by  the  greatest  civil  war  in  history  had  been  allayed. 
It  affected  the  destiny  of  one  whose  crimes  were  aimed  at  the  destruction  of  the 
government  itself,  and  the  public  desire  to  see  the  sentence  of  the  commission 
executed,  was  very  general.  Since  the  anger  and  excitement  of  the  times  have 
passed  away,  and  the  great  questions  involved  in  this  case  present  themselves  in 
their  true  aspect  and  importance,  the  argument  of  Judge  Black  becomes  conspic- 
uous as  a defense  of  the  dearest  rights  of  the  citizen,  and  stands  like  a monument 
to  which  the  eyes  of  mankind  will  turn  in  the  hour  when  their  rights  are  assailed. 
It  will  be  admired  by  the  student  as  a comprehensive  exposition  of  the  funda- 
mental principles  upon  which  the  law  of  civil  liberty  depends,  and  the  causes 
which  led  to  their  perfection  and  adoption  under  our  system.  The  subject  loses 
the  dry,  tedious  detail  of  a legal  argument,  and  becomes  animated  with  the 
spirit  and  genius  of  the  speaker,  while  presenting  a review  of  the  struggle  be- 
tween freedom  and  arbitrary  power  which  the  world  has  witnessed  for  centuries. 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  483 


It  will  be  considered  precious  by  persons  in  every  walk  of  life,  for  it  defines 
in  a masterly  manner  the  natural  rights  guaranteed  to  each  individual  by  the 
organic  law,  and  its  importance  in  this  respect  clothes  it  with  the  heritage  of 
immortality. 

On  the  part  of  the  relator  appeared  David  Dudley  Field,  J.  E.  McDonald, 
Jeremiah  S.  Black,  and  James  A.  Garfield.  On  the  part  of  the  government  the 
attorney-general  (Mr.  Speed)  and  Mr.  Stanberry  and  Benjamin  F.  Butler,  of 
counsel.  Mr.  Black  spoke  as  follows  : 

May  it  please  your  honors  : — I am  not  afraid  that  you  will 
underrate  the  importance  of  this  case.  It  concerns  the  rights  of 
the  w'hole  people.  Such  questions  have  generally  been  settled  by 
arms ; but  since  the  beginning  of  the  world  no  battle  has  ever 
been  lost  or  won  upon  which  the  liberties  of  a nation  were  so  dis- 
tinctly staked  as  they  are  on  the  result  of  this  argument.  The  pen 
that  writes  the  judgment  of  the  court  will  be  mightier,  for  good  or 
for  evil,  than  any  sword  that  ever  was  wielded  by  mortal  arm. 

As  might  be  expected  from  the  nature  of  the  subject,  it  has 
been  a good  deal  discussed  elsewhere,  in  legislative  bodies,  in  pub- 
lic assemblies,  and  in  the  newspaper  press  of  the  country.  But 
there  it  has  been  mingled  with  interests  and  feelings  not  very 
friendly  to  a correct  conclusion.  Here  we  are  in  a higher  atmos- 
phere, where  no  passion  can  disturb  the  judgment  or  shake  the  even 
balance  in  which  the  scales  of  reason  are  held.  Here  it  is  purely  a 
judicial  question;  and  I can  speak  for  my  colleagues  as  well  as  my- 
self, when  I say  that  we  have  no  thought  to  suggest  which  we  do 
not  suppose  to  be  a fair  element  in  the  strictly  legal  judgment 
which  you  are  required  to  make  up. 

In  performing  the  duty  assigned  to  me  in  the  case,  I shall  neces- 
sarily refer  to  the  mere  rudiments  of  constitutional  law;  to  the 
most  commonplace  topics  of  history,  and  to  those  plain  rules  of 
justice  and  right  which  pervade  all  our  institutions.  I beg  your 
honors  to  believe  that  this  is  not  done  because  I think  that  the 
court,  or  any  member  of  it,  is  less  familiar  with  these  things  than  I 
am,  or  less  sensible  of  their  value;  but  simply  and  only  because, 
according  to  my  view  of  the  subject,  there  is  absolutely  no  other 
way  of  dealing  with  it.  If  the  fundamental  principles  of  American 
liberty  are  attacked,  and  we  are  driven  behind  the  inner  walls  of  the 
Constitution  to  defend  them,  we  can  repel  the  assault  only  with 
those  same  old  weapons  which  our  ancestors  used  a hundred  years 
ago.  You  must  not  think  the  worse  of  our  armor  because  it  hap- 
pens to  be  old-fashioned  and  looks  a little  rusty  from  long  disuse. 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


iS-i 

I.  Of  the  charges  against  the  relator,  and  the 

TRIBUNAL  BY  WHICH  HE  WAS  CONVICTED. 

The  case  before  you  presents  but  a single  point,  and  that  an  ex* 
ceedingly  plain  one.  It  is  not  encumbered  with  any  of  those  vexed 
questions  that  might  be  expected  to  arise  out  of  a great  war.  You 
are  not  called  upon  to  decide  what  kind  of  rule  a military  com- 
mander may  impose  upon  the  inhabitants  of  a hostile  country 
which  he  occupies  as  a conqueror,  or  what  punishment  he  may  in- 
flict upon  the  soldiers  of  his  own  army  or  the  followers  of  his 
camp;  or  yet  how  he  may  deal  with  civilians  in  a beleaguered  city 
or  other  place  in  a state  of  actual  siege,  which  he  is  required  to  de- 
fend against  a public  enemy.  The  contest  covers  no  such  ground 
as  that.  The  men  whose  acts  we  complain  of  erected  themselves 
into  a tribunal  for  the  trial  and  punishment  of  citizens  who  were 
connected  in  no  way  whatever  with  the  army  or  navy.  And  this 
they  did  in  the  midst  of  a community  whose  social  and  legal  organi- 
zation had  never  been  disturbed  by  any  war  or  insurrection,  where 
the  courts  were  wide  open,  where  judicial  process  was  executed 
every  day  without  interruption,  and  where  all  the  civil  authorities, 
both  State  and  national,  were  in  the  full  exercise  of  their  functions. 

My  clients  were  dragged  before  this  strange  tribunal,  and  after 
a proceeding,  which  it  would  be  mere  mockery  to  call  a trial,  they 
were  ordered  to  be  hung.  The  charge  against  them  was  put  into 
writing  and  is  found  on  this  record,  but  you  will  not  be  able  to  de- 
cipher its  meaning.  The  relators  were  not  accused  of  treason;  for 
no  act  is  imputed  to  them  which,  if  true,  would  come  within  the 
definition  of  that  crime.  It  was  not  conspiracy  under  the  act  of 
i86i;  for  all  concerned  in  this  business  must  have  known  that  con- 
spiracy was  not  a capital  offense.  If  the  commissioners  were  able 
to  read  English,  they  could  not  help  but  see  that  it  was  made  pun- 
ishable, even  by  fine  and  imprisonment,  only  upon  condition  that 
the  parties  should  first  be  convicted  before  a circuit  or  district 
court  of  the  United  States.  The  judge  advocate  must  have  meant 
to  charge  them  with  some  offense  unknown  to  the  laws,  which  he 
chose  to  make  capital  by  legislation  of  his  own,  and  the  commis- 
sioners were  so  profoundly  ignorant  as  to  think  that  the  legal  inno- 
cence of  the  parties  made  no  difference  in  the  case.  I do  not  say 
what  Sir  James  Mackintosh  said  of  a similar  proceeding:  that  the 
trial  was  a mere  conspiracy  to  commit  willful  murder  upon  three 
innocent  men.  The  commissioners  are  not  on  trial;  they  are  absent 
and  undefended;  and  they  are  entitled  to  the  benefit  of  that  charity 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  CY  JURY.  485 


which  presumes  them  to  be  wholly  unacquainted  with  the  first  prin- 
ciples of  natural  justice,  and  quite  unable  to  comprehend  either 
the  law  or  the  facts  of  a criminal  cause. 

2.  The  commission  which  tried  the  relator,  illegal  and 

rrS  ENTIRE  PROCEEDINGS  VOID  FOR  WANT 
OF  JURISDICTION. 

Keeping  the  character  of  the  charges  in  mind,  let  us  come  at 
once  to  the  simple  question  upon  which  the  court  below  divided  in 
opinion:  Had  the  commissioners  jurisdiction — were  they  invested 
with  legal  authority  to  try  the  relators  and  put  them  to  death  for 
the  offense  of  which  they  were  accused?  We  answer,  no;  and, 
therefore,  the  whole  proceeding  from  beginning  to  end  was  utterly 
null  and  void.  On  the  other  hand,  it  is  absolutely  necessary  for 
those  who  oppose  us  to  assert,  and  they  do  assert,  that  the  com- 
missioners had  complete  legal  jurisdiction  both  of  the  subject-mat- 
ter and  of  the  parties,  so  that  their  judgment  upon  the  law  and  the 
facts  is  absolutely  conclusive  and  binding,  not  subject  to  correction 
nor  open  to  inquiry  in  any  court  whatever.  Of  these  two  opposite 
views,  you  must  adopt  one  or  the  other;  for  there  is  no  middle 
ground  on  which  you  can  possibly  stand. 

I need  not  say  (for  it  is  the  law  of  the  horn  books)  that  where  a 
court  (whatever  may  be  its  power  in  other  respects)  presumes  to 
try  a man  for  an  offense  of  which  it  has  no  right  to  take  judicial 
cognizance,  all  its  proceedings  in  that  case  are  null  and  void.  If 
the  party  is  acquitted,  he  cannot  plead  the  acquittal  afterwards  in 
bar  of  another  prosecution;  if  he  is  found  guilty  and  sentenced,  he 
is  entitled  to  be  relieved  from  the  punishment.  If  a Circuit  Court 
of  the  United  States  should  undertake  to  try  a party  for  an  offense 
clearly  within  the  exclusive  jurisdiction  of  the  State  courts,  the 
judgment  could  have  no  effect.  If  a county  court  in  the  interior 
of  a State  should  arrest  an  officer  of  the  Federal  navy,  try  him,  and 
order  him  to  be  hung  for  some  offense  against  the  law  of  nations, 
committed  upon  the  high  seas  or  in  a foreign  port,  nobody  would 
treat  such  a judgment  otherwise  than  with  mere  derision.  The 
Federal  courts  have  jurisdiction  to  try  offenses  against  the  laws  of 
the  United  States,  and  the  authority  of  the  State  courts  is  confined 
to  the  punishment  of  acts  which  are  made  penal  by  State  laws.  It 
follows  that  where  the  accusation  does  not  amount  to  an  offense 
against  the  law  of  either  the  State  or  the  Federal  government,  no 
court  can  have  jurisdiction  to  try  it.  Suppose,  for  example,  that 


486 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


the  judges  of  this  court  should  organize  themselves  into  a tribunal 
to  try  a man  for  witchcraft,  or  heresy,  or  treason  against  the  Con- 
federate States  of  America,  would  any  body  say  that  your  judg- 
ment had  the  least  validity  ? 

I care  not,  therefore,  whether  the  relators  were  intended  to  be 
charged  with  treason  or  conspiracy,  or  with  some  offense  of  which 
the  law  takes  no  notice.  Either  or  any  way,  the  men  who  under- 
took to  try  them  had  no  jurisdiction  of  the  subject-matter. 

Nor  had  they  jurisdiction  of  the  parties.  It  is  not  pretended 
that  this  was  a case  of  impeachment,  or  a case  arising  in  the  land 
or  naval  forces.  It  is  either  nothing  at  all  or  else  it  is  a simple 
crime  against  the  United  States,  committed  by  private  individuals 
not  in  the  public  service,  civil  or  military.  Persons  standing  in 
that  relation  to  the  government  are  answerable  for  the  offenses 
which  they  may  commit  only  to  the  civil  courts  of  the  country.  So 
says  the  Constitution,  as  we  read  it ; and  the  act  . of  Congress  of 
March  3d,  1863,  which  was  passed  with  express  reference  to  persons 
precisely  in  the  situation  of  these  men,  declares  that  they  shall  be 
delivered  up  for  trial  to  the  proper  civil  authorities. 

3.  Duty  of  the  court  to  discharge  the  petitioners  shown. 

There  being  no  jurisdiction  of  the  subject-matter  or  of  the  par- 
ties, you  are  bound  to  relieve  the  petitioners.  It  is  as  much  the 
duty  of  a judge  to  protect  the  innocent  as  it  is  to  punish  the 
guilty.  Suppose  that  the  secretary  of  some  department  should 
take  it  into  his  head  to  establish  an  ecclesiastical  tribunal  here  in 
the  city  of  Washington,  composed  of  clergymen  “ organized  to 
convict  ” every  body  who  prays  after  a fashion  inconsistent  with 
the  supposed  safety  of  the  State.  If  he  would  select  the  members 
with  a proper  regard  to  the  odium  theologicum.,  I think  I could  in- 
sure him  a commission  that  would  hang  every  man  and  woman 
who  might  be  brought  before  it.  But  would  you,  the  judges  of  the 
land,  stand  by  and  see  their  sentences  executed  ? No  ; you  would 
interpose  your  writ  of  prohibition.,  your  habeas  corpus,  or  any  other 
process  that  might  be  at  your  command,  between  them  and  their 
victims.  And  you  would  do  that  for  precisely  the  reason  which 
requires  your  intervention  here — because  religious  errors,  like  po- 
litical errors,  are  not  crimes  which  any  body  in  this  country  has 
jurisdiction  to  punish,  and  because  ecclesiastical  commissions,  like 
military  commissions,  are  not  among  the  judicial  institutions  of 
this  people.  Our  fathers  long  ago  cast  them  both  aside  among  the 


m DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  487 


rubbish  of  the  dark  ages  ; and  they  intended  that  we,  their  chil- 
dren, should  know  them  only  that  we  might  blush  and  shudder  at 
the  shameless  injustice  and  the  brutal  cruelties  which  they  were 
allowed  to  perpetrate  in  other  times  and  other  countries. 

But  our  friends  on  the  other  side  are  not  at  all  impressed  with 
these  views.  Their  brief  corresponds  exactly  with  the  doctrines 
propounded  by  the  attorney-general,  in  a very  elaborate  official 
paper  which  he  published  last  July,  upon  this  same  subject.  He 
then  avowed  it  to  be  his  settled  and  deliberate  opinion  that  the 
military  might  ‘"'‘take  and  kill^  try  and  execute"  (I  use  his  own 
words)  persons  who  had  no  sort  of  connection  with  the  army  or 
navy.  And  though  this  be  done  in  the  face  of  the  open  courts,  the 
judicial  authorities,  according  to  him,  are  utterly  powerless  to  pre- 
vent the  slaughter  which  may  thus  be  carried  on.  That  is  the 
thesis  which  the  attorney-general  and  his  assistant  counsellors  are 
to  maintain  this  day,  if  they  can  maintain  it,  with  all  the  power  of 
their  artful  eloquence. 

We,  on  the  other  hand,  submit,  that  a person  not  in  the  military 
or  naval  service  cannot  be  punished  at  all  until  he  has  had  a fair, 
open,  public  trial  before  an  impartial  jury,  in  an  ordained  and  es- 
tablished court,  to  which  the  jurisdiction  has  been  given  by  law  to 
try  him  for  that  specific  offense.  There  is  our  proposition.  Be- 
tween the  ground  we  take  and  the  ground  they  occupy  there  is  and 
there  can  be  no  compromise.  It  is  one  way  or  the  other. 

Our  proposition  ought  to  be  received  as  true  without  any  argu- 
ment to  support  it;  because  if  that,  or  something  precisely  equiva- 
lent to  it,  be  not  a part  of  our  law,  this  is  not  what  we  have  always 
supposed  it  to  be — a free  country.  Nevertheless,  I take  upon  my- 
self the  burden  of  showing  affirmatively  not  only  that  it  is  true,  but 
that  it  is  immovably  fixed  in  the  very  frame-work  of  the  govern- 
ment, so  that  it  is  utterly  impossible  to  detach  it  without  destroying 
the  whole  political  structure  under  which  we  live.  By  removing  it 
you  destroy  the  life  of  this  nation  as  completely  as  you  would  de- 
stroy the  life  of  an  individual  by  cutting  the  heart  out  of  his  body. 
I proceed  to  the  proof. 

4.  The  trial  and  punishment  of  an  offense  is  an  exercise 

OF  EXCLUSIVE  AUTHORITY,  CONFERRED  UPON  EXPRESS 
CONDITIONS  AND  LIMITATIONS. 

In  the  first  place,  the  self-evident  truth  will  not  be  denied,  that 
the  trial  and  punishment  of  an  offender  against  the  government  is 


488 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


the  exercise  of  judicial  authority.  That  is  a kind  of  authority 
which  would  be  lost  by  being  diffused  among  the  masses  of  the 
people.  A judge  would  be  no  judge  if  every  body  else  were  a judge 
as  well  as  he.  Therefore,  in  every  society,  however  rude  or  how- 
ever perfect  its  organization,  the  judicial  authority  is  always  com- 
mitted to  the  hands  of  particular  persons,  who  are  trusted  to  use  it 
wisely  and  well;  and  their  authority  is  exclusive;  they  cannot  share 
it  with  others  to  whom  it  has  not  been  committed.  Where,  then,  is 
the  judicial  power  in  this  country  ? Who  are  the  depositaries  of  it 
here?  The  Federal  Constitution  answers  that  question  in  very  plain 
words,  by  declaring  that“//z<?  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Courts  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  or  dam  and  establish^  Congress  has 
from  time  to  time  ordained  and  established  certain  inferior  courts; 
and  in  them,  together  with  the  one  Supreme  Court  to  which  they 
are  subordinate,  is  vested  all  the  judicial  power,  properly  so  called, 
which  the  United  States  can  lawfully  exercise.  That  .was  the  com- 
pact made  with  the  general  government  at  the  time  it  was  created. 
The  States  and  the  people  agreed  to  bestow  upon  that  government 
a certain  portion  of  the  judicial  power  which  otherwise  would  have 
remained  in  their  own  hands,  but  gave  it  on  a solemn  trust,  and 
coupled  the  grant  of  it  with  this  express  condition  : that  it  should 
never  be  used  in  any  way  but  one;  that  is,  by  means  of  ordained 
and  established  courts.  Any  person,  therefore,  who  undertakes  to 
exercise  judicial  power  in  any  other  way,  not  only  violates  the  law 
of  the  land,  but  he  treacherously  tramples  upon  the  most  import- 
ant part  of  that  sacred  covenant  which  holds  these  States  to- 
gether. 

May  it  please  your  honors  : you  know,  and  I know,  and  every 
body  else  knows,  that  it  was  the  intention  of  the  men  who  founded 
this  republic  to  put  the  life,  liberty  and  property  of  every  person 
in  it  under  the  protection  of  a regular  and  permanent  judiciary, 
separate,  apart,  distinct  from  all  other  branches  of  the  government, 
whose  sole  and  exclusive  business  it  should  be  to  distribute  justice 
among  the  people  according  to  the  wants  and  merits  of  each  indi- 
vidual. It  was  to  consist  of  courts,  always  open  to  the  complaint 
of  the  injured,  and  always  ready  to  hear  criminal  accusations  when 
founded  upon  probable  cause  ; surrounded  with  all  the  machinery 
necessary  for  the  investigation  of  truth,  and  clothed  with  sufficient 
power  to  carry  their  decrees  into  execution.  In  these  courts  it  was 
expected  that  judges  would  sit  who  would  be  upright,  honest,  and 


IX  DLFEXSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  489 


sober  men,  learned  in  the  laws  of  their  country,  and  lovers  of  jus- 
tice from  the. habitual  practice  of  that  virtue;  independent  because 
their  salaries  could  not  be  reduced,  and  free  from  party  passion  be- 
cause their  tenure  of  office  was  for  life.  Although  this  would  place 
them  above  the  clamors  of  the  mere  mob  and  beyond  the  reach  of 
executive  influence,  it  was  not  intended  that  they  should  be  wholly 
irresponsible.  For  any  willful  or  corrupt  violation  of  their  duty, 
they  are  liable  to  be  impeached  ; and  they  cannot  escape  the  con- 
trol of  an  enlightened  public  opinion,  for  they  must  sit  with  open 
doors,  listen  to  full  discussion,  and  give  satisfactory  reasons  for  the 
judgments  they  pronounce.  In  ordinary  tranquil  times  the  citizen 
might  feel  himself  safe  under  a judicial  system  so  organized. 

But  our  wise  forefathers  knew  that  tranquillity  was  not  to  be 
always  anticipated  in  a republic;  the  spirit  of  a free  people  is  often 
turbulent.  They  expected  that  strife  would  ri.se  between  classes 
and  sections,  and  even  civil  war  might  come,  and  they  supposed 
that  in  such  times  judges  themselves  might  not  be  safely  trusted  in 
criminal  cases,  especially  in  prosecutions  for  political  offenses,  where 
the  whole  power  of  the  executive  is  arrayed  against  the  accused 
party.  All  history  proves  that  public  officers  of  any  government, 
when  they  are  engaged  in  a severe  struggle  to  retain  their  places, 
become  bitter  and  ferocious,  and  hate  those  who  oppose  them,  even 
in  the  most  legitimate  way,  with  a rancor  which  they  never  exhibit 
towards  actual  crime.  This  kind  of  malignity  vents  itself  in  prose- 
cutions for  political  offenses,  sedition,  conspiracy,  libel,  and  trea- 
son, and  the  charges  are  generally  founded  upon  the  information  of 
hireling  spies  and  common  delators,  who  make  merchandise  of  their 
oaths  and  trade  in  the  blood  of  their  fellow  men.  During  the  civil 
commotions  in  England,  which  lasted  from  the  beginning  of  the 
reign  of  Charles  I to  the  revolution  of  1688,  the  best  men  and  the 
purest  patriots  that  ever  lived  fell  by  the  hand  of  the  public  execu- 
tioner. Judges  were  made  the  instruments  for  inflicting  the  most 
merciless  sentences  on  men,  the  latchet  of  whose  shoes  the  minis- 
ters that  prosecuted  them  were  not  worthy  to  stoop  down  and  un- 
loose. Let  me  say  here  that  nothing  has  occurred  in  the  history  of 
this  country  to  justify  the  doubt  of  judicial  integrity  which  our 
forefathers  seem  to  have  felt.  On  the  contrary,  the  highest  com- 
pliment that  has  ever  been  paid  to  the  American  bench  is  embodied 
in  this  simple  fact:  that  if  the  executive  officers  of  this  government 
have  ever  desired  to  take  away  the  life  or  the  liberty  of  a citizen  con- 
trary to  law,  they  have  not  come  into  the  courts  to  get  it  done;  they 


490 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


have  gone  outside  the  courts,  and  stepped  over  the  Constitution, 
and  created  their  own  tribunals,  composed  of  men  whose  gross  ig- 
norance and  supple  subservience  could  always  be  relied  on  for 
those  base  uses  to  which  no  judge  would  ever  lend  himself.  But 
the  framers  of  the  Constitution  could  act  only  upon  the  experience 
of  that  country  whose  history  they  knew  most  about,  and  there  they 
saw  the  brutal  ferocity  of  Jeffreys  and  Scroggs,  the  timidity  of 
Guilford,  and  the  base  venality  of  such  men  as  Saunders  and 
Wright.  It  seemed  necessary,  therefore,  not  only  to  make  the  ju- 
diciary as  perfect  as  possible,  but  to  give  the  citizen  yet  another 
shield  against  the  wrath  and  malice  of  his  government.  -To  that 
end  they  could  think  of  no  better  provision  than  a public  trial  be- 
fore an  impartial  jury. 

5.  Trial  by  jury  affords  the  best  protection  for  inno- 
cence, AND  THE  SUREST  MODE  OF  PUNISHING  GUILT, 

YET  DISCOVERED  AMONG  MEN. 

I do  not  assert  that  the  jury  trial  is  an  infallible  mode  of  ascer- 
taining truth.  Like  everything  human,  it  has  its  imperfections.  I 
only  say,  that  it  is  the  best  protection  for  innocence  and  the  surest 
mode  of  punishing  guilt  that  has  yet  been  discovered.  It  has  borne 
the  test  of  a longer  experience,  and  borne  it  better,  than  any  other 
legal  institution  that  ever  existed  among  men.  England  owes  more 
of  her  freedom,  her  grandeur,  and  her  prosperity,  to  that  than  to  all 
other  causes  put  together.  It  has  had  the  approbation  not  only  of 
those  who  lived  under  it,  but  of  great  thinkers  who  looked  at  it 
calmly  from  a distance,  and  judged  it  impartially.  Montesquieu 
and  De  Tocqueville  speak  of  it  with  an  admiration  as  rapturous  as 
Coke  and  Blackstone.  Within  the  present  century,  the  most  en- 
lightened states  of  continental  Europe  have  transplanted  it  into 
their  countries;  and  no  people  ever  adopted  it  once  and  were  after- 
wards willing  to  part  with  it.  It  was  only  in  1830  that  an  interfer- 
ence with  it  in  Belgium  provoked  a successful  insurrection  which 
permanently  divided  one  kingdom  into  two.  In  the  same  year,  the 
Revolution  of  the  Barricades  gave  the  right  of  trial  by  jury  to  every 
Frenchman. 

Those  colonists  of  this  country  who  came  from  the  British 
Islands  brought  this  institution  with  them,  and  they  regarded  it  as 
the  most  precious  part  of  their  inheritance.  The  immigrants  from 
other  places  where  trial  by  jury  did  not  exist,  became  equally  at- 
tached to  it  as  soon  as  they  understood  what  it  was.  There  was  no 


IN’  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  491 


subject  upon  which  all  the  inhabitants  of  the  country  were  more 
perfectly  unanimous  than  they  were  in  their  determination  to  main- 
tain this  great  right  unimpaired.  An  attempt  was  made  to  set  it 
aside  and  substitute  military  trials  in  its  place,  by  Lord  Dunmore, 
in  Virginia,  and  General  Gage,  in  Massachusetts,  accompanied  with 
the  excuse  which  has  been  repeated  so  often  in  late  days,  namely, 
that  rebellion  had  made  it  necessary  ; but  it  excited  intense  popu- 
lar anger,  and  every  colony  from  New  Hampshire  to  Georgia  made 
common  cause  with  the  two  whose  rights  had  been  especially  in- 
vaded. Subsequently,  the  Continental  Congress  thundered  it  into 
the  ear  of  the  world,  as  an  unendurable  outrage,  sufficient  to  justify 
universal  insurrection  against  the  authority  of  the  government 
which  had  allowed  it  to  be  done. 

If  the  men  who  fought  out  our  revolutionary  contest,  when  they 
came  to  frame  a government  for  themselves  and  their  posterity,  had 
failed  to  insert  a provision  making  the  trial  by  jury  perpetual  and 
universal,  they  would  have  covered  themselves  all  over  with  infamy 
as  with  a garment;  for  they  would  have  proved  themselves  basely  re- 
creant to  the  principles  of  that  very  liberty  of  which  they  professed 
to  be  the  special  champions.  But  they  were  guilty  of  no  such 
treachery.  They  not  only  took  care  of  the  trial  by  jury,  but  they 
regulated  every  step  to  be  taken  in  a criminal  trial.  They  knew 
very  well  that  no  people  could  be  free  under  a government  which 
had  the  power  to  punish  without  restraint.  Hamilton  expressed  in 
the  Federalist  the  universal  sentiment  of  his  time,  when  he  said  that 
the  arbitrary  power  of  conviction  and  punishment  for  pretended 
offenses  had  been  the  great  engine  of  despotism  in  all  ages  and 
all  countries.  The  existence  of  such  power  is  utterly  incompatible 
with  freedom.  The  difference  between  a master  and  his  slave  con- 
sists only  in  this  : that  the  master  holds  the  lash  in  his  hands  and 
he  may  use  it  without  legal  restraint,  while  the  naked  back  of  the 
slave  is  bound  to  take  whatever  is  laid  on  it. 

6.  Enumeration  of  the  rights  for  the  preservation  of 

INDIVIDUAL  LIBERTY,  WHICH  FORMS  PART  OF  THE 
ORGANIC  LAW. 

But  our  fathers  were  not  absurd  enough  to  put  unlimited  power 
in  the  hands  of  the  ruler  and  take  away  the  protection  of  law  from 
the  rights  of  individuals.  It  was  not  thus  that  they  meant  “to  se- 
cure the  blessings  of  liberty  to  themselves  and  their  posterity.’* 


493 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


They  determined  that  not  one  drop  of  the  blood  which  had  been 
shed  on  the  other  side  of  the  Atlantic,  during  seven  centuries  of 
contest  with  arbitrary  power,  should  sink  into  the  ground  ; but  the 
fruits  of  every  popular  victory  should  be  garnered  up  in  this  new 
government.  Of  all  the  great  rights  already  won,  they  threw  not 
an  atom  away.  They  went  over  Magna  Charta^  the  Petition  of 
Rights  the  Bill  of  Rights,  and  the  rules  of  the  Common  Law,  and 
whatever  was  found  there  to  favor  individual  liberty  they  carefully 
inserted  in  their  own  system,  improved  by  clearer  expression, 
strengthened  by  heavier  sanctions,  and  extended  by  a more  univer- 
sal application.  They  put  all  those  provisions  into  the  organic  law, 
so  that  neither  tyranny  in  the  executive,  nor  party  rage  in  the  Leg- 
islature could  change  them  without  destroying  the  government 
itself. 

Look  for  a moment  at  the  particulars  and  see  how  carefully 
every  thing  connected  with  the  administration  of  punitive  justice  is 
guarded. 

1.  No  post  facto  law  shall  be  passed.  No  man  shall  be  an- 
swerable criminally  for  any  act  which  was  not  defined  and  made 
punishable  as  a crime  by  some  law  in  force  at  the  time  when  the 
act  was  done. 

2.  For  an  act  which  is  criminal  he  cannot  be  arrested  without  a 
judicial  warrant  founded  on  proof  of  probable  cause.  He  shall  not 
be  kidnapped  and  shut  up  on  the  mere  report  of  some  base  spy 
who  gathers  the  materials  of  a false  accusation  by  crawling  into 
his  house  and  listening  at  the  key-hole  of  his  chamber  door. 

3.  He  shall  not  be  compelled  to  testify  against  himself.  He 
may  be  examined  before  he  is  committed,  and  tell  his  own  story  if 
he  pleases;  but  the  rack  shall  be  put  out  of  sight,  and  even  his  con- 
science shall  not  be  tortured;  nor  shall  his  unpublished  papers  be 
used  against  him,  as  was  done  most  wrongfully  in  the  case  of  Al- 
gernon Sydney. 

4.  He  shall  be  entitled  to  a speedy  trial;  not  kept  in  prison  for 
an  indefinite  time  without  the  opportunity  of  vindicating  his  inno- 
cence. 

5.  He  shall  be  informed  of  the  accusation,  its  nature  and 
grounds.  The  public  accuser  must  put  the  charge  into  the  form 
of  a legal  indictment,  so  that  the  party  can  meet  it  full  in  the  face. 

6.  Even  to  the  indictment  he  need  not  answer  unless  a grand 
jury,  after  hearing  the  evidence,  shall  say  upon  their  oaths  that  they 
believe  it  to  be  true. 


ly  DEFENSE  OF  THE  EIGHT  TO  TRIAL  BY  JURY.  493 


7.  Then  comes  the  trial,  and  it  must  be  before  a regular  court  of 
competent  jurisdiction,  ordained  and  established  for  the  State  and 
district  in  which  the  crime  was  committed;  and  this  shall  not  be 
evaded  by  a legislative  change  in  the  district  after  the  crime  is  al- 
leged to  be  done. 

8.  His  guilt  or  innocence  shall  be  determined  by  an  impartial 
jury.  These  English  words  are  to  be  understood  in  their  English 
sense,  and  they  mean  that  the  jurors  shall  be  fairly  selected  by  a 
sworn  officer,  from  among  the  peers  of  the  party  residing  within  the 
local  jurisdiction  of  the  court.  When  they  are  called  into  the  box, 
he  can  purge  the  panel  of  all  dishonesty,  prejudice,  personal  enmity, 
and  ignorance,  by  a certain  number  of  peremptory  challenges,  and 
as  many  more  challenges  as  he  can  sustain  by  showing  reasonable 
cause. 

9.  The  trial  shall  be  public  and  open,  that  no  underhand  ad- 
vantage may  be  taken.  The  party  shall  be  confronted  with  the 
witnesses  against  him,  have  compulsory  process  for  his  own  wit- 
nesses, and  be  entitled  to  the  assistance  of  counsel  in  his  defense. 

10.  After  the  evidence  is  heard  and  discussed,  unless  the  jury 
shall,  upon  their  oaths,  unanimously  agree  to  surrender  him  up  into 
the  hands  of  the  court  as  a guilty  man,  not  a hair  of  his  head  can 
be  touched  by  way  of  punishment. 

11.  After  a verdict  of  guilty,  he  is  still  protected.  No  cruel 
or  unusual  punishment  shall  be  inflicted,  nor  any  punishment  at  all, 
except  what  is  annexed  by  law  to  his  offense.  It  cannot  be  doubt- 
ed for  a moment,  that  if  a person  convicted  of  an  offense  not  capi- 
tal were  to  be  hung  on  the  order  of  a judge,  such  judge  would  be 
guilty  of  murder  as  plainly  as  if  he  should  come  down  from  the 
bench,  tuck  up  the  sleeves  of  his  gown,  and  let  out  the  prisoner’s 
blood  with  his  own  hand. 

12.  After  all  is  over,  the  law  continues  to  spread  its  guardian- 
ship around  him.  Whether  he  is  acquitted  or  condemned  he  shall 
never  again  be  molested  for  that  offense.  No  man  shall  be  twice 
put  in  jeopardy  of  life  or  limb  for  the  same  cause. 

7.  Special  provisions  applicable  to  the  law  of  treason. 

These  rules  apply  to  all  criminal  prosecutions.  But,  in  addi- 
tion to  these,  certain  special  regulations  were  required  for  treason^ 
the  one  great  political  charge  under  which  more  innocent  men  have 
fallen  than  any  other.  A tyrannical  government  calls  everybody  a 
traitor  who  shows  the  least  unwillingness  to  be  a slave.  The  party 


494 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


in  power  never  fails,  when  it  can,  to  stretch  the  law  on  that  subiect 
by  construction,  so  as  to  cover  its  honest  and  conscientious  oppo- 
nents. In  the  absence  of  a constitutional  provision  it  was  justly 
feared  that  statutes  might  be  passed  which  would  put  the  lives  of 
the  most  patriotic  citizens  at  the  mercy  of  the  basest  minions  that 
skulk  about  under  pay  of  the  executive.  Therefore  a definition  of 
treason  was  given  in  the  fundamental  law,  and  the  legislative  au- 
thority could  not  enlarge  it  to  serve  the  purpose  of  partisan  malice. 
The  nature  and  amount  of  evidence  required  to  prove  the  crime 
was  also  prescribed,  so  that  prejudice  and  enmity  might  have  no 
share  in  the  conviction.  And  lastly,  the  punishment  was  so  limited 
that  the  property  of  the  party  could  not  be  confiscated  and  used  to 
reward  the  agents  of  his  persecutors,  or  strip  his  family  of  their  sub- 
sistence. 

If  these  provisions  exist  in  full  force,  unchangeable  and  irrepeal- 
able,  then  we  are  not  hereditary  bondsmen.  Every  citizen  may 
safely  pursue  his  lawful  calling  in  the  open  day;  and  at  night,  if  he 
is  conscious  of  innocence,  he  may  lie  down  in  security  and  sleep 
the  sound  sleep  of  the  freeman. 

I say  they  are  in  force,  and  they  will  remain  in  force.  We  have 
not  surrendered  them  and  we  never  will.  If  the  worst  comes  fo 
the  worst,  we  will  look  to  the  living  God  for  His  help,  and  defend 
our  rights  and  the  rights  of  our  children  to  the  last  extremity. 
Those  men  who  think  we  can  be  subjected  and  abjected  to  the  con- 
dition of  mere  slaves  are  wholly  mistaken.  The  great  race  to  which 
we  belong  has  not  degenerated  so  fatally. 

8.  Historical  retrospect  of  the  provisions  which  to-day 

SECURE  THE  NATURAL  RIGHTS  OF  MAN. 

But  how  am  I to  prove  the  existence  of  these  rights?  I do  not 
propose  to  do  it  by  a long  chain  of  legal  argumentation,  nor  by  the 
production  of  numerous  books  with  the  leaves  dog-eared  and  the 
pages  marked.  If  it  depended  upon  judicial  precedents,  I think  I 
could  produce  as  many  as  might  be  necessary.  If  I claimed  this 
freedom,  under  any  kind  of  prescription,  I could  prove  a good  long 
possession  in  ourselves  and  those  under  whom  we  claim  it.  I might 
begin  with  Tacitus,  and  show  how  the  contest  arose  in  the  forests 
of  Germany  more  than  two  thousand  years  ago;  how  the  rough  vir- 
tues and  sound  common  sense  of  that  people  established  the  right 
of  trial  by  jury,  and  thus  started  on  a career  which  has  made  their 
posterity  the  foremost  race  that  ever  lived  in  all  the  tide  of  time. 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  495 


The  Saxons  carried  it  to  England,  and  were  ever  ready  to  defend  it 
with  their  blood.  It  was  crushed  out  by  the  Danish  invasion;  and 
all  that  they  suffered  of  tyranny  and  oppression,  during  the  period 
of  their  subjugation,  resulted  from  the  want  of  trial  by  jury.  If  that 
had  been  conceded  to  them  the  reaction  would  not  have  taken 
place  which  drove  back  the  Danes  to  their  frozen  homes  in  the 
North.  But  those  ruffian  sea-kings  could  not  understand  that,  and 
the  reaction  came.  Alfred,  the  greatest  of  revolutionary  heroes  and 
the  wisest  monarch  that  ever  sat  on  a throne,  made  the  first  use  of 
his  power,  after  the  Saxons  restored  it,  to  re-establish  their  ancient 
laws.  He  had  promised  them  that  he  would,  and  he  was  tiue  to 
them  because  they  had  been  true  to  him.  But  it  was  not  easily 
done;  the  courts  were  opposed  to  it,  for  it  limited  their  power — a 
kind  of  power  that  every  body  covets — the  power  to  punish  with- 
out regard  to  law.  He  was  obliged  to  hang  forty-four  judges  in 
one  year  for  refusing  to  give  his  subjects  a trial  by  jury.  When 
the  historian  says  he  hung  them,  it  is  not  meant  that  he  put  them 
to  death  without  a trial.  He  had  them  impeached  before  the  grand 
council  of  the  nation,  the  Wittenagemote,  the  parliament  of  that 
time.  During  the  subsequent  period  of  Saxon  domination  no  man 
on  English  soil  was  powerful  enough  to  refuse  a legal  trial  to  the 
meanest  peasant.  If  any  minister  or  any  king,  in  war  or  in  peace, 
had  dared  to  punish  a freeman  by  a tribunal  of  his  own  appoint- 
ment, he  would  have  roused  the  wrath  of  the  whole  population; 
all  orders  of  society  would  have  resisted  it;  lord  and  vassal,  knight 
and  squire,  priest  and  penitent,  bocman  and  socman,  master  and 
thrall,  copyholder  and  villein,  would  have  risen  in  one  mass  and 
burnt  the  offender  to  death  in  his  castle,  or  followed  him  in  his 
flight  and  torn  him  to  atoms.  It  was  again  trampled  down  by  the 
Norman  conquerors;  but  the  evils  resulting  from  the  want  of  it 
united  all  classes  in  the  effort  which  compelled  King  John  to  re- 
store it  by  the  Great  Charter.  Everybody  is  familiar  with  the  strug- 
gles which  the  English  people,  during  many  generations,  made  for 
their  rights  with  the  Plantagenets,  the  Tudors,  and  the  Stuarts,  and 
which  ended  finally  in  the  revolution  of  1688,  when  the  liberties  of 
England  were  placed  upon  an  impregnable  basis  by  the  Bill  of 
Rights. 

Many  times  the  attempt  was  made  to  stretch  the  royal  authority 
far  enough  to  justify  military  trials;  but  it  never  had  more  than 
temporary  success.  Five  hundred  years  ago  Edward  II  closed  up 
a great  rebellion  by  taking  the  life  of  its  leader,  the  Earl  of  Lan- 


496 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


caster,  after  trying  him  before  a military  court.  Eight  years  later 
that  same  king,  together  with  his  lords  and  commons  in  parliament 
assembled,  acknowledged  with  shame  and  sorrow  that  the  execution 
of  Lancaster  was  a mere  murder,  because  the  courts  were  open  and 
he  might  have  had  a legal  trial.  Queen  Elizabeth,  for  sundry  rea- 
sons affecting  the  safety  of  the  State,  ordered  that  certain  offend- 
ers not  of  her  army  should  be  tried  according  to  the  law  martial. 
But  she  heard  the  storm  of  popular  vengeance  rising,  and,  haughty, 
imperious,  self-willed  as  she  was,  she  yielded  the  point;  for  she 
knew  that  upon  that  subject  the  English  people  would  never 
consent  to  be  trifled  with.  Strafford,  as  Lord  Lieutenant  of  Ire- 
land, tried  the  Viscount  Stormount  before  a military  commis- 
sion. When  impeached  for  it,  he  pleaded  in  vain  that  Ireland 
was  in  a state  of  insurrection,  that  Stormount  was  a traitor,  and  the 
army  would  be  undone  if  it  could  not  defend  itself  without  appeal- 
ing to  the  civil  courts.  The  parliament  was  deaf;  the  king  himself 
could  not  save  him;  he  was  condemned  to  suffer  death  as  a traitor 
and  a murderer.  Charles  I issued  commissions  to  divers  officers 
for  the  trial  of  his  enemies  according  to  the  course  of  military 
law.  If  rebellion  ever  was  an  excuse  for  such  an  act,  he  could 
surely  have  pleaded  it;  for  there  was  scarcely  a spot  in  his  king- 
dom, from  sea  to  sea,  where  the  royal  authority  was  not  disputed 
by  some  body.  Yet  the  parliament  demanded  in  their  petition  of 
right,  and  the  king  was  obliged  to  concede,  that  all  his  commissions 
were  illegal.  James  II  claimied  the  right  to  suspend  the  operation 
of  the  penal  laws — a power  which  the  courts  denied — but  the  expe- 
rience of  his  predecessors  taught  him  that  he  could  not  suspend 
any  man’s  right  to  a trial.  He  could  easily  have  convicted  the 
Seven  Bishops  of  any  offense  he  saw  fit  to  charge  them  with,  if  he 
could  have  selected  their  judges  from  among  the  mercenary  crea- 
tures to  whom  he  had  given  commands  in  his  army.  But  this  he 
dared  not  do.  He  was  obliged  to  send  the  bishops  to  a jury,  and 
endure  the  mortification  of  seeing  them  acquitted.  He,  too,  might 
have  had  rebellion  for  an  excuse,  if  rebellion  be  an  excuse.  The 
conspiracy  was  already  ripe,  which  a few  months  afterwards  made 
him  an  exile  and  an  outcast;  he  had  reason  to  believe  that  the 
Prince  of  Orange  was  making  his  preparations  on  the  other  side  of 
the  channel  to  invade  the  kingdom,  where  thousands  burned  to  join 
him;  nay,  he  pronounced  the  bishops  guilty  of  rebellion  by  the 
very  act  for  which  he  arrested  them.  He  had  raised  an  army  to 
meet  the  rebellion,  and  he  was  on  Hounslow  Heath  reviewing  the 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  497 


troops  organized  for  that  purpose,  when  he  heard  the  great  shout  of 
joy  that  went  up  from  Westminster  Hall,  was  echoed  back  from 
Temple  Bar,  spread  down  the  city  and  over  the  Thames,  and  rose 
from  every  vessel  on  the  river — the  simultaneous  shout  of  two  hun- 
dred thousand  men  for  the  triumph  of  justice  and  law. 

If  it  were  worth  the  time  I might  detain  you  by  showing  how 
this  subject  was  treated  by  the  French  Court  of  Cassation  in  Geof- 
froy’s  case,  under  the  constitution  of  1830,  when  a military  judg- 
ment was  unhesitatingly  pronounced  to  be  void,  though  ordered  by 
the  king,  after  a proclamation  declaring  Paris  in  a state  of  siege. 
Fas  est  ab  hoste  docei'i;  we  may  lawfully  learn  something  from  our 
enemies — at  all  events  we  should  blush  at  the  thought  of  not  being 
equal  on  such  a subject  to  the  courts  of  Virginia,  Georgia,  Missis- 
sippi, and  Texas,  whose  decisions  my  colleague.  General  Garfield, 
has  read  and  commented  on. 

9.  No  MILITARY  TRIBUNAL  HAS  POWER  TO  TRY  A CITIZEN  AT  A 

PLACE  WHERE  THE  COURTS  ARE  OPEN. THE  TITLE  BY 

WHICH  A JURY  TRIAL  IS  SECURED. 

The  truth  is,  that  no  authority  exists  anywhere  in  the  world  for 
the  doctrine  of  the  attorney-general.  No  judge  or  jurist,  no  states- 
man or  parliamentary  orator,  on  this  or  the  other  side  of  the  water, 
sustains  him.  Every  elementary  writer,  from  Coke  to  Wharton,  is 
against  him.  All  military  authors  who  profess  to  know  the  duties 
of  their  profession,  admit  themselves  to  be  under,  not  above,  the 
laws.  No  book  can  be  found  in  any  library  to  justify  the  assertion 
that  military  tribunals  may  try  a citizen  at  a place  where  the  courts 
are  open.  When  I say  no  book,  I mean,  of  course,  no  book  of  ac- 
knowledged authority.  I do  not  deny  that  hireling  clergymen  have 
often  been  found  to  disgrace  the  pulpit  by  trying  to  prove  the 
divine  right  of  kings  and  other  rulers  to  govern  as  they  please.  It 
is  true  also  that  court  sycophants  and  party  hacks  have  many  times 
written  pamphlets,  and  perhaps  large  volumes,  to  show  that  those 
whom  they  serve  should  be  allowed  to  work  out  their  bloody  will 
upon  the  people.  No  abuse  of  power  is  too  flagrant  to  find  its  de- 
fenders among  such  servile  creatures.  Those  butchers’  dogs  that 
feed  upon  garbage  and  fatten  upon  the  offal  of  the  shambles  are 
always  ready  to  bark  at  whatever  interferes  with  the  trade  of  their 
master.  But  this  case  does  not  depend  on  authority.  It  is  rather  a 
question  of  fact  than  of  law. 

I prove  my  right  to  a trial  by  jury  just  as  I would  prove  my 
32 


4:98 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


title  to  an  estate  if  I held  in  my  hand  a solemn  deed  conveying  it 
to  me,  coupled  with  undeniable  evidence  of  long  and  undisturbed 
possession  under  and  according  to  the  deed.  There  is  the  charter 
by  which  we  claim  to  hold  it.  It  is  called  the  Constitution  of  the 
United  States.  It  is  signed  by  the  sacred  name  of  George  Wash- 
ington, and  by  thirty-nine  other  names,  only  less  illustrious  than  his. 
They  represented  every  independent  State  then  upon  this  conti- 
nent, and  each  State  afterwards  ratified  their  work  by  a separate 
convention  of  its  own  people.  Every  State  that  subsequently  came 
in  acknowledged  that  this  was  the  great  standard  by  which  their 
rights  were  to  be  measured.  Every  man  that  has  ever  held  office 
in  the  country  from  that  time  to  this,  has  taken  an  oath  that  he 
would  support  and  sustain  it  through  good  report  and  through  evil. 
The  attorney-general  himself  became  a party  to  the  instrument 
when  he  laid  his  hand  upon  the  gospel  of  God  and  solemnly  swore 
that  he  would  give  to  me  and  every  other  citizen  the  full  benefit  of 
all  it  contains.  What  does  it  contain  ? This  among  other  things: 
“ The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury.” 

Again  : “No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime  unless  on  a presentment  or  indictment  of 
a grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia  when  in  actual  service  in  time  of  war  or  public  dan- 
ger; nor  shall  any  person  be  subject  for  the  same  offense  to  be 
twice  put  in  jeopardy  of  life  or  limb,  nor  be  compelled  in  any  crim- 
inal case  to  be  a witness  against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation.” 

This  is  not  all ; another  article  declares,  that  “ in  all  criminal 
prosecutions  the  accused  shall  enjoy  the  right  to  a speedy  and  pub- 
lic trial  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law  ; and  to  be  informed  of  the  nature 
and  cause  of  the  accusation  ; to  be  confronted  with  the  witnesses 
against  him  ; to  have  compulsory  process  for  the  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  defense.” 

Is  there  any  ambiguity  there  ? If  that  does  not  signify  that  a 
jury  trial  shall  be  the  exclusive  and  only  means  of  ascertaining 
guilt  in  criminal  cases,  then  I demand  to  know  what  words  or  what 
collocation  of  words  in  the  English  language  would  have  that  ef- 
fect ? Does  this  mean  that  a fair,  open,  speedy,  public  trial  by  an 


IX  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  499 


impartial  jury  shall  be  given  only  to  those  persons  against  whom 
no  special  grudge  is  felt  by  the  attorney-general,  or  the  judge  advo- 
cate, or  the  head  of  a department  ? Shall  this  inestimable  privilege 
be  extended  only  to  men  whom  the  administration  does  not  care  to 
convict  ? Is  it  confined  to  vulgar  criminals,  who  commit  ordinary 
crimes  against  society,  and  shall  it  be  denied  to  men  who  are  ac- 
cus.ed  of  such  offenses  as  those  for  which  Sydney  and  Russell  were 
beheaded,  and  Alice  Lisle  was  hung,  and  Elizabeth  Gaunt  was 
burnt  alive,  and  John  Bunyan  was  imprisoned  fourteen  years,  and 
Baxter  was  whipped  at  the  cart’s  tail,  and  Prynn  had  his  ears  cut 
off?  No;  the  words  of  the  Constitution  are  all-embracing — 

“As  broad  and  general  as.  the  casing  air.” 

The  trial  of  ALL  crimes  shall  be  by  jury.  ALL  persons  ac- 
cused shall  enjoy  that  privilege — and  NO  person  shall  be  held  to 
answer  in  any  other  way. 

That  would  be  sufficient  without  more.  But  there  is  another 
consideration  which  gives  it  tenfold  power.  It  is  a universal  rule  of 
construction  that  general  words  in  any  instrument,  though  they  may 
be  weakened  by  enumeration,  are  always  strengthened  by  excep- 
tions. Here  is  no  attempt  to  enumerate  the  particular  cases  in 
which  men  charged  with  criminal  offenses  shall  be  entitled  to  a jury 
trial.  It  is  simply  declared  that  all  shall  have  it.  But  that  is 
coupled  with  a statement  of  two  specific  exceptions  : cases  of  im- 
peachment; and  cases  arising  in  the  land  or  naval  forces.  These 
exceptions  strengthen  the  application  of  the  general  rule  to  all  other 
cases.  Where  the  law-giver  himself  has  declared  when  and  in  what 
circumstances  you  may  depart  from  the  general  rule,  you  shall  not 
presume  to  leave  that  onward  path  for  other  reasons,  and  make  dif- 
ferent exceptions.  To  exceptions,  the  maxim  is  always  applicable, 
that  expressio  unius  est  exclusio  alterius. 

lo.  In  turbulent  times  the  rights  of  the  citizen  should  be 

DOUBLY  GUARDED. 

But  we  are  answered  that  the  judgment  under  consideration  was 
pronounced  in  time  of  war,  and  it  is  therefore,  at  least,  morally  ex- 
cusable. There  may  or  there  may  not  be  something  in  that.  I ad- 
mit that  the  merits  or  demerits  of  any  particular  act,  whether  it 
involve  a violation  of  the  Constitution  or  not,  depend  upon  the 
motives  that  prompted  it,  the  time,  the  occasion,  and  all  the  attend- 
ing circumstances.  When  the  people  of  this  country  come  to  de- 


500 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


cide  upon  the  acts  of  their  rulers,  they  will  take  all  these  things  into 
consideration.  But  that  presents  the  political  aspect  of  the  case, 
with  which,  I trust,  we  have  nothing  to  do  here.  I decline  to  dis- 
cuss it.  I would  only  say,  in  order  to  prevent  misapprehension, 
that  I think  it  is  precisely  in  a time  of  war  and  civil  commotion 
that  we  should  double  the  guards  upon  the  Constitution.  If  the 
sanitary  regulations  which  defend  the  health  of  a city  are  ever  to 
be  relaxed,  it  ought  certainly  not  to  be  done  when  pestilence  is 
abroad.  When  the  Mississippi  shrinks  within  its  natural  channel 
and  creeps  lazily  along  the  bottom,  the  inhabitants  of  the  adjoining 
shore  have  no  need  of  a dyke  to  save  them  from  inundation.  But 
when  the  booming  flood  comes  down  from  above,  and  swells  into  a 
volume  which  rises  high  above  the  plain  on  either  side,  then  a cre- 
vasse in  the  levee  becomes  a most  serious  thing.  So,  in  peaceable 
and  quiet  times,  our  legal  rights  are  in  little  danger  of  being  over- 
borne; but  when  the  wave  of  arbitrary  power  lashes  itself  into  vio- 
lence and  rage,  and  goes  surging  up  against  the  barriers  which  were 
made  to  confine  it,  then  we  need  the  whole  strength  of  an  unbro- 
ken Constitution  to  save  us  from  destruction.  But  this  is  a ques- 
tion which  properly  belongs  to  the  jurisdiction  of  the  stump  and 
the  newspaper. 

II.  Why  the  plea  of  necessity,  the  only  excuse  for 

VIOLATING  LAW,  HAS  NO  APPLICATION 
TO  THE  CASE. 

There  is  another  quasi  political  argument — necessity.  If  the 
law  was  violated  because  it  could  not  be  obeyed,  that  might  be  an 
excuse.  But  no  absolute  compulsion  is  pretended  here.  These 
commissioners  acted,  at  most,  under  what  they  regarded  as  a moral 
necessity.  The  choice  was  left  them  to  obey  the  law  or  disobey  it. 
The  disobedience  was  only  necessary  as  means  to  an  end  which 
they  thought  desirable ; and  now  they  assert  that  though  these 
means  are  unlawful  and  wrong,  they  are  made  right,  because  with- 
out them  the  object  could  not  be  accomplished;  in  other  words,  the 
end  justifies  the  means.  There  you  have  a rule  of  conduct  de- 
nounced by  all  law,  human  and  divine,  as  being  pernicious  in  pol- 
icy and  false  in  morals.  See  how  it  applies  to  this  case.  Here 
were  three  men  whom  it  was  desirable  to  remove  out  of  this  world, 
but  there  was  no  proof  on  which  any  court  would  take  their  lives; 
therefore  it  was  necessary,  and  being  necessary  it  was  right  and 
proper,  to  create  an  illegal  tribunal  which  would  put  them  to  death 


IX  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  501 


without  proof.  By  the  same  mode  of  reasoning  you  can  prove  it 
equally  right  to  poison  them  in  their  food  or  stab  them  in  their 
sleep.  Nothing  that  the  worst  men  ever  propounded  has  produced 
so  much  oppression,  misgovernment,  and  suffering  as  this  pretense 
of  State  necessity.  A great  authority  calls  it  “ the  tyrant’s  devilish 
plea;”  and  the  common  honesty  of  all  mankind  has  branded  it  with 
everlasting  infamy. 

12.  Necessity  could  but  excuse  a violation  of  law,  but 

CANNOT  IMPART  VALIDITY  TO  AN  ACT  WHICH  THE 
LAW  FORBIDS. 

Of  course,  it  is  mere  absurdity  to  say  that  these  relators  were 
necessarily  deprived  of  their  right  to  a fair  and  legal  trial,  for  the 
record  shows  that  a court  of  competent  jurisdiction  was  sitting  at 
the  very  time  and  in  the  same  town,  where  justice  would  have  been 
done  without  sale,  denial,  or  delay.  But  concede,  for  the  argument’s 
sake,  that  a trial  by  jury  was  wholly  impossible;  admit  that  there 
was  an  absolute,  overwhelming,  imperious  necessity  operating  so  as 
literally  to  compel  every  act  which  the  commissioners  did,  would 
that  give  their  sentence  of  death  the  validity  and  force  of  a legal 
judgment  pronounced  by  an  ordained  and  established  court  ? The 
question  answers  itself.  This  trial  was  a violation  of  law,  and  no 
necessity  could  be  more  than  a mere  excuse  for  those  who  commit- 
ted it.  If  the  commissioners  were  on  trial  for  murder  or  conspir- 
acy to  murder,  they  might  plead  necessity  if  the  fact  were  true, 
just  as  they  would  plead  insanity  or  anything  else  to  show  that  their 
guilt  was  not  willful.  But  we  are  now  considering  the  legal  effect 
of  their  decision,  and  that  depends  on  their  legal  authority  to  make 
it.  They  had  no  such  authority;  they  usurped  a jurisdiction  which 
the  law  not  only  did  not  give  them,  but  expressly  forbade  them  to 
exercise,  and  it  follows  that  their  act  is  void,  whatever  may  have 
been  the  real  or  supposed  excuse  for  it. 

If  these  commissioners,  instead  of  aiming  at  the  life  and  liberty 
of  the  relators,  had  attempted  to  deprive  them  of  their  property  by 
a sentence  of  confiscation,  would  any  court  in  Christendom  declare 
that  such  a sentence  divested  the  title  ? Or  would  a person  claim- 
ing under  the  sentence  make  his  right  any  better  by  showing  that 
the  illegal  assumption  of  jurisdiction  was  accompanied  by  some 
excuse  which  might  save  the  commissioners  from  a criminal  prose- 
cution ? 

Let  me  illustrate  still  further.  Suppose  you,  the  judges  of  this 


502 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


court,  to  be  surrounded  in  the  hall  where  you  are  sitting  by  a 
body  of  armed  insurgents,  and  compelled  by  main  force  to  pro- 
nounce sentence  of  death  upon  the  President  of  the  United 
States,  for  some  act  of  his  upon  which  . you  have  no  legal  au- 
thority to  adjudicate.  There  would  be  a valid  sentence  if  necessity 
alone  could  create  jurisdiction.  But  could  the  President  be  legally 
executed  under  it?  No  ; the  compulsion  under  which  you  acted 
would  be  a good  defense  for  you  against  an  impeachment  or  an  in- 
dictment for  murder,  but  it  would  add  nothing  to  the  validity  of  a 
judgment  which  the  law  forbade  you  to  give. 

That  a necessity  for  violating  the  law  is  nothing  more  than  a 
mere  excuse  to  the  perpetrator,  and  does  not  in  any  legal  sense 
change  the  quality  of  the  act  itself  in  its  operation  upon  other  par- 
ties, is  a proposition  too  plain  on  original  principles  to  need  the 
aid  of  authority.  I do  not  see  how  any  man  of  common  sense  is 
to  stand  up  and  dispute  it.  But  there  is  decisive  authority  upon 
the  point.  In  1815,  at  New  Orleans,  General  Jackson  took  upon 
himself  the  command  of  every  person  in  the  city,  suspended  the 
functions  of  all  the  civil  authorities,  and  made  his  own  will  for  a 
time  the  only  rule  of  conduct.  It  was  believed  to  be  absolutely 
necessary.  Judges,  officers  of  the  city  corporation,  and  members 
of  the  State  Legislature,  insisted  on  it  as  the  only  way  to  save 
the  “booty  and  beauty”  of  the  place  from  the  unspeakable  out- 
rages committed  at  Badajos  and  St.  Sebastian  by  the  very  same 
troops  then  marching  to  the  attack.  Jackson  used  the  power  thus 
taken  by  him  moderately,  sparingly,  benignly,  and  only  for  the 
purpose  of  preventing  mutiny  in  his  camp.  A single  mutineer 
was  restrained  by  a short  confinement,  and  another  was  sent  four 
miles  up  the  river.  But  after  he  had  saved  the  city,  and  the  dan- 
ger was  all  over,  he  stood  before  the  court  to  be  tried  by  the  law; 
his  conduct  was  decided  to  be  illegal  by  the  same  judge  who  had 
declared  it  to  be  necessary,  and  he  paid  the  penalty  without  a mur- 
mur. The  Supreme  Court  of  Louisiana,  in  Johnson  v.  Duncan,  de- 
cided that  everything  done  during  the  siege  in  pursuance  of  martial 
rule,  but  in  conflict  with  the  law  of  the  land,  was  void  and  of  none 
effect,  without  reference  to  the  circumstances  which  made  it  nec- 
essary. Long  afterwards  the  fine  imposed  upon  Jackson  was  re- 
funded, because  his  friends,  while  they  admitted  him  to  have  vio- 
lated the  law,  insisted  that  the  necessity  which  drove  him  to  it 
ought  to  have  saved  him  from  the  punishment  due  only  to  a 
willful  offender. 


IN’  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  50u 


The  learned  counsel  on  the  other  side  will  not  assert  that  there 
was  war  at  Indianapolis  in  1864,  for  they  have  read  Coke' s Institutes 
and  Judge  Grier’s  opinion  in  the  Prize  Cases,  and  of  course  they 
know  it  to  be  a settled  rule  that  war  cannot  be  said  to  exist  where 
the  civil  courts  are  open.  They  will  not  set  up  the  absurd  plea  of 
necessity,  for  they  are  well  aware  that  it  would  not  be  true  in  point 
of  fact.  They  will  hardly  take  the  ground  that  any  kind  of  neces- 
sity could  give  legal  validity  to  that  which  the  law  forbids. 

This,  therefore,  must  be  their  position:  That  although  there 
was  no  war  at  the  place  where  this  commission  sat,  and  no  actual 
necessity  for  it,  yet  if  there  was  a war  any  where  else,  to  which  the 
United  States  were  a party,  the  technical  effect  of  such  war  was  to 
take  the  jurisdiction  away  from  the  civil  courts  and  transfer  it  to 
army  officers. 

GEN.  BUTLER.  We  do  not  take  that  position. 

MR.  BLACK.  Then  they  can  take  no  position  at  all,  for 
nothing  else  is  left.  I do  not  wonder  to  see  them  recoil  from  their 
own  doctrine  when  its  nakedness  is  held  up  to  their  eyes.  But 
they  must  stand  upon  that  or  give  up  their  cause.  They  may  not 
state  their  proposition  precisely  as  I state  it;  that  is  too  plain  a 
way  of  putting  it.  But,  in  substance,  it  is  their  doctrine — has  been 
the  doctrine  of  the  attorney-general’s  office  ever  since  the  advent 
of  the  present  incumbent — and  is  the  doctrine  of  their  brief, 
printed  and  filed  in  this  case.  What  else  can  they  say?  They  will 
admit  that  the  Constitution  is  not  altogether  without  a meaning; 
that  at  a time  of  universal  peace  it  imposes  some  kind  of  obligation 
upon  those  who  swear  to  support  it.  If  no  war  existed  they  would 
not  deny  the  exclusive  jurisdiction  of  the  civil  courts  in  criminal 
cases.  How  then  did  the  military  get  jurisdiction  in  Indiana? 

All  men  who  hold  the  attorney-general’s  opinion  to  be  true, 
answer  the  question  I have  put  by  saying  that  military  jurisdic- 
tion comes  from  the  mere  existence  of  war;  and  it  comes  in  Indi- 
ana only  as  the  legal  result  of  a war  which  is  going  on  in  Mississip- 
pi, Tennessee,  or  South  Carolina.  The  Constitution  is  repealed, 
or  its  operation  suspended  in  one  State  because  there  is  war  in 
another.  The  courts  are  open,  the  organization  of  society  is  in- 
tact, the  judges  are  on  the  bench,  and  their  process  is  not  impeded; 
but  their  jurisdiction  is  gone.  Why  ? Because,  say  our  opponents, 
war  exists,  and  the  silent,  legal,  technical  operation  of  that  fact  is 
to  deprive  all  American  citizens  of  their  right  to  a fair  trial. 


504 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


13.  Results  of  the  doctrine  that  trial  by  jury  is  lost 

TO  THE  CITIZEN  DURING  THE  EXISTENCE  OF  WAR. 

That  class  of  jurists  and  statesmen  who  hold  that  the  trial  by 
jury  is  lost  to  the  citizen  during  the  existence  of  war,  carry  out 
their  doctrine  theoretically  and  practically  to  its  ultimate  conse“ 
quences.  The  right  of  trial  by  jury  being  gone,  all  other  rights  are 
gone  with  it;  therefore,  a man  may  be  arrested  without  an  accusa- 
tion and  kept  in  prison  during  the  pleasure  of  his  captors;  his  pa- 
pers may  be  searched  without  a warrant,  his  property  may  be  con- 
fiscated behind  his  back,  and  he  has  no  earthly  means  of  redress. 
Nay,  an  attempt  to  get  a just  remedy  is  construed  as  a new  crime. 
He  dare  not  even  complain,  for  the  right  of  free  speech  is  gone 
with  the  rest  of  his  rights.  If  you  sanction  that  doctrine,  what  is 
to  be  the  consequence?  I do  not  speak  of  what  is  past  and  gone; 
but  in  case  of  a future  war  what  results  will  follow  from  your 
decision  endorsing  the  attorney-general’s  views  ? They  are  very 
obvious.  At  the  instant  when  the  war  begins,  our  whole  system 
of  legal  government  will  tumble  into  ruin,  and  if  we  are  not  all 
robbed,  and  kidnapped,  and  hanged,  and  drawn,  and  quartered, 
we  will  owe  our  immunity,  not  to  the  Constitution  and  laws,  but  to 
the  mere  mercy  or  policy  of  those  persons  who  may  then  happen 
to  control  the  organized  physical  force  of  the  country. 

This  certainly  puts  us  in  a most  precarious  condition;  we  must 
have  war  about  half  the  time,  do  what  we  may  to  avoid  it.  The 
President  or  Congress  can  wantonly  provoke  a war  whenever  it 
suits  the  purpose  of  either  to  do  so;  and  they  can  keep  it  going 
as  long  as  they  please,  even  after  the  actual  conflict  of  arms  is 
over.  When  peace  woos  them  they  can  ignore  her  existence;  and 
thus  they  can  make  the  war  a chronic  condition  of  the  country, 
and  the  slavery  of  the  people  perpetual.  Nay,  we  are  at  the  mercy 
of  any  foreign  potentate  who  may  envy  us  the  possession  of  those 
liberties  of  which  we  boast  so  much  ; he  can  shatter  our  Constitu- 
tion without  striking  a single  blow,  or  bringing  a gun  to  bear 
upon  us.  A simple  declaration  of  hostilities  is  more  terrible  to 
us  than  an  army  with  banners. 

To  me,  this  seems  the  wildest  delusion  that  ever  took  pos- 
session of  a human  brain.  If  there  be  one  principle  of  political 
ethics  more  universally  acknowledged  than  another,  it  is  that 
war,  and  especially  civil  war,  can  be  justified  only  when  it  is 
undertaken  to  vindicate  and  uphold  the  legal  and  constitutional 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  505 


rights  of  the  people,  not  to  trample  them  down.  He  who  car- 
ries on  a system  of  wholesale  slaughter  for  any  other  purpose, 
must  stand  without  excuse  before  God  or  man.  In  a time  of 
war,  more  than  at  any  other  time,  public  liberty  is  in  the  hands 
of  the  public  officers.  And  she  is  there  in  double  trust:  first,  as 
they  are  citizens,  and  therefore  bound  to  defend  her  by  the  com- 
mon obligation  of  all  citizens;  and  next,  as  they  are  her  special 
guardians — 

“ Who  should  against  her  murderers  shut  the  door 
Not  bear  the  knife  themselves.” 

The  opposing  argument,  when  turned  into  plain  English,  means 
this,  and  this  only:  that  when  the  Constitution  is  attacked  upon  one 
side,  its  official  guardians  may  assail  it  upon  the  other ; when 
rebellion  strikes  it  in  the  face,  they  may  take  advantage  of  the 
blindness  produced  by  the  blow  to  sneak  behind  it  and  stab  it 
in  the  back. 

14.  The  rights  of  the  civil  authorities  have  been 

REGARDED  AS  SACRED  IN  THE  PAST. 

The  Convention,  when  it  framed  the  Constitution,  and  the 
people,  when  they  adopted  it,  could  have  had  no  thought  like 
that.  If  they  had  supposed  that  it  would  operate  only  while  per- 
fect peace  continued,  they  certainly  would  have  given  us  some  other 
rule  to  go  by  in  time  of  war  ; they  would  not  have  left  us  to  wander 
about  in  a howling  wilderness  of  anarchy,  without  a lamp  to  our 
feet,  or  a guide  to  our  path.  Another  thing  proves  their  actual  in- 
tent still  more  strikingly.  They  required  that  every  man  in  any 
kind  of  public  employment,  state  or  national,  civil  or  military, 
should  swear,  without  reserve  or  qualification,  that  he  would  sup- 
port the  Constitution.  Surely  our  ancestors  had  too  much  regard 
for  the  moral  and  religious  welfare  of  their  posterity  to  impose  upon 
them  an  oath  like  that,  if  they  intended  and  expected  it  to  be  bro- 
ken half  the  time.  The  oath  of  an  officer  to  support  the  Constitu- 
tion is  as  simple  as  that  of  a witness  to  tell  the  truth  in  a court  of 
justice.  What  would  you  think  of  a witness  who  should  attempt  to 
justify  perjury  upon  the  ground  that  he  had  testified  when  civil  war 
was  raging,  and  he  thought  that  by  swearing  to  a lie  he  might  pro- 
mote some  public  or  private  object  connected  with  the  strife  ? 

No,  no,  the  great  men  who  made  this  country  what  it  is — the 


506 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


heroes  who  won  her  independence,  and  the  statesmen  who  settled 
her  institutions — had  no  such  notions  in  their  minds.  Washington 
deserved  the  lofty  praise  bestowed  upon  him  by  the  president  of 
Congress  when  he  resigned  his  commission — that  he  had  always  re- 
garded the  rights  of  the  civil  authority  through  all  changes  and 
through  all  disasters.  When  his  duty  as  President  afterwards  re- 
quired him  to  arm  the  public  force  to  suppress  a rebellion  in  West- 
ern Pennsylvania,  he  never  thought  that  the  Constitution  was  abol- 
ished, by  virtue  of  that  fact,  in  New  Jersey,  or  Maryland,  or  Virginia. 
It  would  have  been  a dangerous  experiment  for  an  adviser  of  his  at 
that  time,  or  at  any  time,  to  propose  that  he  should  deny  a citizen 
his  right  to  be  tried  by  a jury,  and  substitute  in  place  of  it  a trial 
before  a tribunal  composed  of  men  elected  by  himself  from  among 
his  own  creatures  and  dependents.  You  can  well  imagine  how  that 
great  heart  would  have  swelled  with  indignation  at  the  bare  thought 
of  such  an  insulting  outrage  upon  the  liberty  and  law  of  his  coun- 
try. 

In  the  war  of  1812,  the  man  emphatically  called  the  Father  of 
the  Constitution  was  the  supreme  Executive  Magistrate.  Talk  of 
perilous  times!  there  was  the  severest  trial  this  Union  ever  saw. 
That  was  no  half-organized  rebellion  on  the  one  side  of  the  con- 
flict, to  be  crushed  by  the  hostile  millions  and  unbounded  resources 
of  the  other.  The  existence  of  the  nation  was  threatened  by  the 
most  formidable  military  and  naval  power  then  upon  the  face  of  the 
earth.  Every  town  upon  the  northern  frontier,  upon  the  Atlantic 
seaboard,  and  upon  the  Gulf  coast  was  in  daily  and  hourly  danger. 
The  enemy  had  penetrated  the  heart  of  Ohio.  New  York,  Penn- 
sylvania, and  Virginia  were  all  of  them  threatened  from  the  west  as 
well  as  from  the  east.  The  Capitol  was  taken,  and  burned,  and 
pillaged,  and  every  member  of  the  Federal  Administration  was  a 
fugitive  before  the  invading  army.  Meanwhile,  party  spirit  was 
breaking  out  into  actual  treason  all  over  New  England.  Four  of 
those  States  refused  to  furnish  a man  or  a dollar  even  for  their  own 
defense.  Their  public  authorities  were  plotting  the  dismemberment 
of  the  Union,  and  individuals  among  them  were  burning  blue  lights 
upon  the  coast  as  a signal  to  the  enemy’s  ships.  But  in  all  this 
storm  of  disaster,  with  foreign  war  in  his  front  and  domestic  treason 
on  his  flank,  Madison  gave  out  no  sign  that  he  would  aid  old  En- 
gland and  New  England  to  break  up  this  government  of  laws.  On 
the  contrary,  he  and  all  his  supporters,  though  compassed  round 


IN'  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  507 


mth  darkness  and  with  danger,  stood  faithfully  between  the  Consti- 
tution and  its  enemies 

“ To  shield  it,  and  save  it,  or  perish  there  too.” 

The  framers  of  the  Constitution  and  all  their  contemporaries 
died  and  were  buried;  their  children  succeeded  them  and  continued 
on  the  stage  of  public  affairs  until  they,  too, 

“ Lived  out  their  lease  of  life,  and  paid  their  breath 
To  time  and  mortal  custom;” 

and  a third  generation  was  already  far  on  its  way  to  the  grave  before 
this  monstrous  doctrine  was  conceived  or  thought  of,  that  public 
officers  all  over  the  country  might  disregard  their  oaths  whenever  a 
war  or  a rebellion  was  commenced. 

15.  Neither  the  law  of  nations,  nor  the  laws  of  war, 

HAVE  ANY  BEARING  ON  THE  CASE. 

Our  friends  on  the  other  side  are  quite  conscious  that  when  they 
deny  the  binding  obligation  of  the  Constitution  they  must  put  some 
other  system  of  law  in  its  place.  Their  brief  gives  us  notice  that, 
while  the  Constitution,  and  the  acts  of  Congress,  and  Magna  Char- 
tay  and  the  common  law,  and  all  the  rules  of  natural  justice  shall 
remain  under  foot,  they  will  try  American  citizens  according  to  the 
law  of  nations  ! But  the  law  of  nations  takes  no  notice  of  the  sub- 
ject. If  that  system  did  contain  a special  provision  that  a govern- 
ment might  hang  one  of  its  own  citizens  without  a judge  or  jury,  it 
would  still  be  competent  for  the  American  people  to  say,  as  they 
have  said,  that  no  such  thing  should  ever  be  done  here.  That  is 
my  answer  to  the  law  of  nations. 

But  then  they  tell  us  that  the  laws  of  war  must  be  treated  as 
paramount.  Here  they  become  mysterious.  Do  they  mean  that 
code  of  public  law  which  defines  the  duties  of  two  belligerent  par- 
ties to  one  another,  and  regulates  the  intercourse  of  neutrals  with 
both  ? If  yes,  then  it  is  simply  a recurrence  to  the  law  of  nations, 
which  has  nothing  on  earth  to  do  with  the  subject.  Do  they  mean 
that  portion  of  our  municipal  code  which  defines  our  duties  to  the 
government  in  war  as  well  as  in  peace  ? Then  they  are  speaking  of 
the  Constitution  and  laws,  which  declare  in  plain  words  that  the 
government  owes  every  citizen  a fair  legal  trial,  as  much  as  the 
citizen  owes  obedience  to  the  government.  They  are  in  search  of 
an  argument  under  difficulties.  When  they  appeal  to  international 


508 


ARGUMENT  OF  JEREMIAH  S,  BLACK 


law,  it  is  silent ; and  when  they  interrogate  the  law  of  the  land,  the 
answer  is  an  unequivocal  contradiction  of  their  whole  theory. 

The  attorney-general  tells  us  that  all  persons  whom  he  and  his 
associates  choose  to  denounce  for  giving  aid  to  the  rebellion,  are  to 
be  treated  as  being  themselves  a part  of  the  rebellion  ; they  are 
public  enemies,  and  therefore  they  may  be  punished  without  being 
found  guilty  by  a competent  court  or  a jury.  This  convenient  rule 
would  outlaw  every  citizen  the  moment  he  is  charged  with  a polit- 
ical offense.  But  political  offenders  are  precisely  the  class  of  per- 
sons who  most  need  the  protection  of  a court  and  jury,  for  the 
prosecutions  against  them  are  most  likely  to  be  unfounded,  both  in 
fact  and  in  law.  Whether  innocent  or  guilty,  to  accuse  is  to  con- 
vict them  before  the  ignorant  and  bigoted  men  who  generally  sit  in 
military  courts.  But  this  Court  decided,  in  the  Prize  Cases,  that  all 
who  live  in  the  enemy’s  territory  are  public  enemies,  without  regard 
to  their  personal  sentiments  or  conduct ; and  the  converse  of  the 
proposition  is  equally  true,  that  all  who  reside  inside  of  our  own 
territory  are  to  be  treated  as  under  the  protection  of  the  law.  If 
they  help  the  enemy,  they  are  criminals ; but  they  cannot  be  pun- 
ished without  legal  conviction. 

You  have  heard  much  (and  you  will  hear  more  very  soon)  con- 
cerning the  natural  and  inherent  right  of  the  government  to  defend 
itself  without  regard  to  law.  This  is  wholly  fallacious.  In  a 
despotism  the  autocrat  is  unrestricted  in  the  means  he  may  use  for 
the  defense  of  his  authority  against  the  opposition  of  his  own  sub- 
jects or  others  ; and  that  is  precisely  what  makes  him  a despot. 
But  in  a limited  monarchy  the  prince  must  confine  himself  to  a 
legal  defense  of  his  government.  If  he  goes  beyond  that,  and  com- 
mits aggressions  on  the  rights  of  the  people,  he  breaks  the  social 
compact,  releases  his  subjects  from  all  their  obligations  to  him, 
renders  himself  liable  to  be  hurled  from  his  throne,  and  dragged  to 
the  block  or  driven  into  exile.  This  principle  was  sternly  enforced 
in  the  cases  of  Charles  I and  James  II,  and  we  have  it  announced, 
on  the  highest  official  authority  here,  that  the  Queen  of  England 
cannot  ring  a little  bell  on  her  table  and  cause  a man  by  her  arbi- 
trary order  to  be  arrested  under  any  pretense  whatever.  If  that  be 
true  there,  how  much  more  true  must  it  be  here,  where  we  have  no 
personal  sovereign,  and  where  our  only  government  is  the  Consti- 
tution and  laws.  A violation  of  law  on  pretense  of  saving  such  a 
government  as  ours  is  not  self-preservation,  but  suicide. 

Salus  populi  suprema  lex — observe  it  is  not  salus  regis ; the 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  509 


safety  of  the  people^  not  the  safety  of  the  ruler ^ is  the  supreme  law. 
When  those  who  hold  the  authority  of  the  government  in  their 
hands,  behave  in  such  manner  as  to  put  the  liberties  and  rights  of 
the  people  in  jeopardy,  the  people  may  rise  against  them  and  over- 
throw them  without  regard  to  that  law  which  requires  obedience  to 
them.  The  maxim  is  revolutionary  and  expresses  simply  the  right 
to  resist  tyranny  without  regard  to  prescribed  forms.  It  can  never 
be  used  to  stretch  the  powers  of  government  against  the  people. 

i6.  Legal  modes  possessed  by  the  government  for  protect- 
ing ITSELF  AGAINST  DANGER. 

If  this  government  of  ours  has  no  power  to  defend  itself  with, 
out  violating  its  own  laws,  it  carries  the  seeds  of  destruction  in  its 
own  bosom ; it  is  a poor,  weak,  blind,  staggering  thing,  and  the 
sooner  it  tumbles  over  the  better.  But  it  has  a most  efficient  legal 
mode  of  protecting  itself  against  all  possible  danger.  It  is  clothed 
from  head  to  foot  in  a complete  panoply  of  defensive  armor. 
What  are  the  perils  which  may  threaten  its  existence  ? I am  not 
able  at  this  moment  to  think  of  more  than  these  which  I am  about 
to  mention  : foreign  invasion,  domestic  insurrection,  mutiny  in  the 
army  and  navy,  corruption  in  the  civil  administration,  and  last  but 
not  least  criminal  violations  of  its  laws  committed  by  individuals 
among  the  body  of  the  people.  Have  we  not  a legal  mode  of  de- 
fense against  all  these?  Yes;  military  force  repels  invasion  and 
suppresses  insurrection  ; you  preserve  discipline  in  the  army  and 
navy  by  means  of  courts-martial  ; you  preserve  the  purity  of  the 
civil  administration  by  impeaching  dishonest  magistrates ; and 
crimes  are  prevented  and  punished  by  the  regular  judicial  author- 
ities. You  are  not  merely  compelled  to  use  these  weapons  against 
your  enemies,  because  they,  and  they  only,  are  justified  by  the  law; 
you  ought  to  use  them  because  they  are  more  efficient  than  any 
other,  and  less  liable  to  be  abused. 

There  is  another  view  of  the  subject  which  settles  all  contro- 
versy about  it.  No  human  being  in  this  country  can  exercise  any 
kind  of  public  authority  which  is  not  conferred  by  law  ; and  under 
the  United  States  it  must  be  given  by  express  words  of  a written 
statute.  Whatever  is  not  so  given  is  withheld,  and  the  exercise  of 
it  is  positively  prohibited.  Courts-martial  in  the  army  and  navy 
are  authorized  ; they  are  legal  institutions  ; their  jurisdiction  is 
limited,  and  their  whole  code  of  procedure  is  regulated,  by  act  of 
Congress.  Upon  the  civil  courts  all  the  jurisdiction  they  have  or 


510 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


oan  have  is  bestowed  by  law,  and  if  one  of  them  goes  beyond  what 
is  written,  its  action  is  ultra  vires  and  void.  But  a military  com- 
mission is  not  a court-martial,  and  it  is  not  a civil  court.  It  is  not 
governed  by  the  law  which  is  made  for  either,  and  it  has  no  law  of 
its  own.  Within  the  last  five  years  we  have  seen,  for  the  first  time, 
self-constituted  tribunals  not  only  assuming  power  which  the  law 
did  not  give  them,  but  thrusting  aside  the  regular  courts  to  which 
the  power  was  exclusively  given. 

17.  A MILITARY  COMMISSION  AN  ANOMALY  AUTHORIZED  BY  NO 
LAW,  AND  GOVERNED  BY  NO  LAWS  OF  ITS  OWN. 

What  is  the  consequence  ? This  terrible  authority  is  wholly 
undefined,  and  its  exercise  is  without  any  legal  control.  Undele- 
gated power  is  always  unlimited.  The  field  that  lies  outside  of  the 
Constitution  and  laws  has  no  boundary.  Thierry,  the  French  his- 
torian of  England,  says,  that  when  the  crown  and  scepter  were 
offered  to  Cromwell,  he  hesitated  for  several  days,  and  answered  : 
“ Do  not  make  me  a King  ; for  then  my  hands  will  be  tied  up  by 
the  laws  which  define  the  duties  of  that  office  ; but  make  me  Pro- 
tector of  the  Commonwealth,  and  I can  do  what  I please  ; no  stat- 
ute restraining  and  limiting  the  royal  prerogative  will  apply  to  me.” 
So  these  commissions  have  no  legal  origin  and  no  legal  name  by 
which  they  are  known  among  the  children  of  men  ; no  law  applies 
to  them  ; and  they  exercise  all  power  for  the  paradoxical  reason 
that  none  belongs  to  them  rightfully. 

Ask  the  attorney-general  what  rules  apply  to  military  commis- 
sions in  the  exercise  of  their  assumed  authority  over  civilians. 
Come,  Mr.  Attorney,  “ gird  up  thy  loins  now  like  a man  ; I will 
demand  of  thee,  and  thou  shalt  declare  unto  me,  if  thou  hast  under- 
standing.” How  is  a military  commission  organized  ^ What  shall 
be  the  number  and  rank  of  its  members  ? What  offenses  come 
within  its  jurisdiction  ? What  is  its  code  of  procedure  ? How 
shall  witnesses  be  compelled  to  attend  it  ? Is  it  perjury  for  a wit- 
ness to  swear  falsely  ? What  is  the  function  of  the  judge  advo- 
cate ? Does  he  tell  the  members  how  they  must  find,  or  does  he 
only  persuade  them  to  convict  ? Is  he  the  agent  of  the  govern- 
ment, to  command  them  what  evidence  they  shall  admit  and  what 
sentence  they  shall  pronounce  ? or  does  he  always  carry  his  point, 
right  or  wrong,  by  the  mere  force  of  eloquence  and  ingenuity  ? 
What  is  the  nature  of  their  punishments  ? May  they  confiscate 
property  and  levy  fines  as  well  as  imprison  and  kill  ? In  addition 


m DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY.  511 


to  Strangling  their  victim,  may  they  also  deny  him  the  last  consola- 
tions of  religion,  and  refuse  his  family  the  melancholy  privilege  of 
giving  him  a decent  grave  ? 

To  none  of  these  questions  can  the  attorney-general  make  a re- 
ply, for  there  is  no  law  on  the  subject.  He  will  not  attempt  to 
darken  counsel  by  words  without  knowledge,”  and,  therefore,  like 
Job,  he  can  only  lay  his  hand  upon  his  mouth  and  keep  silence. 


i8.  Military  commission  synonymous  with  arbitrary  power. 

• — Review  of  the  various  modes  in  which  it  has 

BEEN  EXERCISED  THROUGHOUT  THE  WORLD. 

The  power  exercised  through  these  military  commissions  is  not 
only  unregulated  by  law,  but  it  is  incapable  of  being  so  regulated. 
What  is  it  that  you  claim,  Mr.  Attorney  ? 1 will  give  you  a defini- 

tion, the  correctness  of  which  you  will  not  attempt  to  gainsay.  You 
assert  the  right  of  the  executive  government,  without  the  interven- 
tion of  the  judiciary,  to  capture,  imprison,  and  kill  any  person  to 
whom  that  government  or  its  paid  dependents  may  choose  to  im- 
pute an  offense.  This,  in  its  very  essence,  is  despotic  and  lawless. 
It  is  never  claimed  or  tolerated  except  by  those  governments  which 
deny  the  restraints  of  all  law.  It  has  been  exercised  by  the  great 
and  small  oppressors  of  mankind  ever  since  the  days  of  Nimrod. 
It  operates  in  different  ways  ; the  tools  it  uses  are  not  always  the 
same  ; it  hides  its  hideous  features  under  many  disguises  ; it  as- 
sumes every  variety  of  form  ; 

“ It  can  change  shapes  "with  Proteus  for  advantages, 

And  set  the  murderous  Machiavel  to  school.” 

But  in  all  its  mutations  of  outward  appearance,  it  is  still  identical 
in  principle,  object,  and  origin.  It  is  always  the  same  great  engine 
of  despotism  which  Hamilton  described  it  to  be. 

Under  the  old  French  monarchy  the  favorite  fashion  of  it  was  a 
/eUre  de  cachet^  signed  by  the  king,  and  this  would  consign  the 
party  to  a loathsome  dungeon  until  he  died,  forgotten  by  all  the 
world.  An  imperial  ukase  will  answer  the  same  purpose  in  Russia. 
The  most  faithful  subject  of  that  amiable  autocracy  may  lie  down 
in  the  evening  to  dream  of  his  future  prosperity,  and  before  day- 
break he  will  find  himself  between  two  dragoons  on  his  way  to  the 
mines  of  Siberia.  In  Turkey,  the  verbal  order  of  the  Sultan  or 
any  of  his  powerful  favorites  will  cause  a man  to  be  tied  up  in  a 


512 


ARGUMENT  OF  JEEEMIAH  S.  BLACK 


sack  and  cast  into  the  Bosphorus.  Nero  accused  Peter  and  Paul 
of  spreading  a “ pestilent  superstition,”  which  they  called  the 
gospel.  He  heard  their  defense  in  person,  and  sent  them  to  the 
cross.  Afterwards  he  tried  the  whole  Christian  church  in  one  body, 
on  a charge  of  setting  fire  to  the  city,  and  he  convicted  them, 
though  he  knew  not  only  that  they  were  innocent,  but  that  he  him- 
self had  committed  the  crime.  The  judgment  was  followed  by  in- 
stant execution  ; he  let  loose  the  Praetorian  guards  upon  men, 
women,  and  children  to  drown,  butcher,  and  burn  them.  Herod 
saw  fit,  for  good  political  reasons,  closely  affecting  the  permanence 
of  his  reign  in  Judea,  to  punish  certain  possible  traitors  in  Bethle- 
hem by  anticipation.  This  required  the  death  of  all  the  children 
in  that  city  under  two  years  of  age.  He  issued  his  “general  order,” 
and  his  provost  marshal  carried  it  out  with  so  much  alacrity  and 
zeal  that  in  one  day  the  whole  land  was  filled  with  mourning  and 
lamentation. 

Macbeth  understood  the  whole  philosophy  of  the  subject.  He 
was  an  unlimited  monarch.  His  power  to  punish  for  any  offense 
or  for  no  offense  at  all  was  as  broad  as  that  which  the  attorney- 
general  claims  for  himself  and  his  brother  officers  under  the  United 
States.  But  he  was  more  cautious  how  he  used  it.  He  had  a dan- 
gerous rival,  from  whom  he  apprehended  the  most  serious  peril  to 
the  “life  of  his  government.”  The  necessity  to  get  rid  of  him  was 
plain  enough,  but  he  could  not  afford  to  shock  the  moral  sense  of 
the  world  by  pleading  political  necessity  for  a murder.  He  must 
“ Mask  the  business  from  the  common  eye.” 

Accordingly,  he  sent  for  two  enterprising  gentlemen  whom  he 
Cook  into  his  service  upon  liberal  pay — “ made  love  to  their  assist- 
ance,” and  got  them  to  deal  with  the  accused  party.  He  acted  as 
his  own  judge  advocate.  He  made  a most  eloquent  and  stirring 
speech  to  persuade  his  agents  that  Banquo  was  their  oppressor,  and 
had  “ held  them  so  under  fortune  ; ” that  he  ought  to  die  for  that 
alone.  When  they  agreed  that  he  was  their  enemy,  then  said  the 
king: 

“ So  is  he  mine,  and  though  I could 
With  barefaced  power  sweep  him  from  my  sight, 

And  bid  my  will  avouch  it ; yet  I must  not. 

For  certain  friends,  who  are  both  his  and  mine, 

Whose  loves  I may  not  drop.” 

For  these,  and  “ many  weighty  reasons”  besides,  he  thought  it 
best  to  commit  the  execution  of  his  design  to  a subordinate  agency. 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY. 


513 


The  commission  thus  organized  in  Banquo’s  case  sat  upon  him 
that  very  night  at  a convenient  place  beside  the  road  where  it 
was  known  he  would  be  traveling  ; and  they  did  precisely  what 
the  attorney-general  says  the  military  officers  may  do  in  this  coun- 
try— they  took  and  killed  him,  because  their  employer  at  the  head 
of  the  government  wanted  it  done  and  paid  them  for  doing  it 
out  of  the  public  treasury. 

But  of  all  the  persons  that  ever  wielded  this  kind  of  power, 
the  one  who  went  most  directly  to  the  purpose  and  the  object  of 
it,  was  Lola  Montez.  She  reduced  it  to  the  elementary  principle. 
In  1848,  when  she  was  minister  and  mistress  to  the  king  of  Bavaria, 
she  dictated  all  the  measures  of  the  government.  The  times  were 
troublesome.  All  over  Germany  the  spirit  of  rebellion  was  rising; 
everywhere  the  people  wanted  to  see  a first-class  re/olution,  like 
that  which  had  just  exploded  in  France.  Many  persons  in  Bava- 
ria disliked  to  be  governed  so  absolutely  by  a lady  of  the  char- 
acter which  Lola  Montez  bore,  and  some  of  them  were  rash  enough 
to  say  so.  Of  course  that  was  treason,  and  she  went  about  to 
punish  it  in  the  simplest  of  all  possible  ways.  She  bought  her- 
self a pack  of  English  bull-dogs,  trained  to  tear  the  flesh  and 
mangle  the  limbs,  and  lap  the  life-blood;  and,  with  these  dogs  at 
her  heels,  she  marched  up  and  down  the  streets  of  Munich  with  a 
most  majestic  tread,  and  with  a sense  of  power  which  any  judge 
advocate  in  America  might  envy.  When  she  saw  any  body  whom 
she  chose  to  denounce  for  “thwarting  the  government,”  or  “ using 
disloyal  language,”  her  obedient  followers  needed  but  a sign  to 
make  them  spring  at  the  throat  of  their  victim.  It  gives  me  un- 
speakable pleasure  to  tell  you  the  sequel.  The  people  rose  in  their 
strength,  smashed  down  the  whole  machinery  of  oppression,  and 
drove  out  into  uttermost  shame  king,  strumpet,  dogs  and  all.  From 
that  time  to  this  neither  man,  woman,  nor  beast,  has  dared  to  worry 
or  kill  the  people  of  Bavaria. 

All  these  are  but  so  many  different  ways  of  using  the  arbitrary 
power  to  punish.  The  variety  is  merely  in  the  means  which  a ty- 
rannical government  takes  to  destroy  those  whom  it  is  bound  to 
protect.  Every  where  it  is  but  another  construction,  on  the  same 
principle,  of  that  remorseless  machine  by  which  despotism  wreaks 
its  vengeance  on  those  who  offend  it.  In  a civilized  country  it 
nearly  always  uses  the  military  force,  because  that  is  the  sharpest, 
the  surest,  as  well  as  the  best  looking  instrument  that  can  be  found 
for  such  a purpose.  But  in  none  of  its  forms  can  it  be  introduced 
33 


514 


ARGUMENT  OF  JEREMIAH  S.  BLACK 


into  this  country;  we  have  no  room  for  it;  the  ground  here  is  all 
preoccupied  by  legal  and  free  institutions. 

Between  the  officers  who  have  power  like  this  and  the  people 
who  are  liable  to  become  its  victims,  there  can  be  no  relation  ex- 
cept that  of  master  and  slave.  The  master  may  be  kind  and  the 
slave  may  be  contented  in  his  bondage;  but  the  man  who  can  take 
your  life  or  restrain  your  liberty,  or  despoil  you  of  your  property 
at  his  discretion,  either  with  his  own  hands  or  by  means  of  a hired 
overseer,  owns  you  and  he  can  force  you  to  serve  him.  All  you  are 
and  all  you  have,  including  your  wives  and  children,  are  his  prop- 
erty. 

If  my  learned  and  very  good  friend,  the  attorney-general,  had 
this  right  of  domination  over  me,  I should  not  be  very  much  fright- 
ened, for  I should  expect  him  to  use  it  as  moderately  as  any  man 
in  all  the  world  ; but  still  I should  feel  the  necessity  of  being  very 
discreet.  He  might  change  in  a short  time.  The  thirst  for  blood 
is  an  appetite  which  grows  by  what  it  feeds  upon.  We  cannot  know 
him  by  present  appearances.  Robespierre  resigned  a country  judge- 
ship  in  early  life  because  he  was  too  tender  hearted  to  pronounce 
sentence  of  death  upon  a convicted  criminal.  Caligula  passed  for  a 
most  amiable  young  gentleman  before  he  was  clothed  with  the  impe- 
rial purple,  and  for  about  eight  months  afterwards.  It  was  Trajan, 
I think,  who  said  that  absolute  power  would  convert  any  man  into  a 
wild  beast,  whatever  was  the  original  benevolence  of  his  nature.  If 
you  decide  that  the  attorney-general  holds  in  his  own  hands  or 
shares  with  others  the  power  of  life  and  death  over  us  all,  I mean 
to  be  very  cautious  in  my  intercourse  with  him;  and  I warn  you, 
the  judges  whom  I arn  now  addressing,  to  do  likewise.  Trust  not 
to  the  gentleness  and  kindness  which  has  always  marked  his  beha- 
vior heretofore.  Keep  your  distance  ; be  careful  how  you  ap- 
proach him,  for  you  know  not  at  what  moment  or  by  what  a trifle 
you  may  rouse  the  sleeping  tiger.  Remember  the  injunction  of 
scripture,  “ Go  not  near  to  the  man  who  hath  power  to  kill;  and  if 
thou  come  unto  him,  see  that  thou  make  no  fault,  lest  he  take  away 
thy  life  presently;  for  thou  goest  among  snares  and  walkest  upon 
the  battlements  of  the  city.” 

The  right  of  the  executive  government  to  kill  and  imprison  citi- 
zens for  political  offenses  has  not  been  practically  claimed  in  this 
country,  except  in  cases  where  commissioned  officers  of  the  army 
were  the  instruments  used  ? Why  should  it  be  confined  to  them  } 
Why  diould  not  naval  officers  be  permitted  to  share  in  it?  What  is 


IN  DEFENSE  OF  THE  RIGHT  TO  TRIAL  BY  JURY,  515 


the  reason  that  common  soldiers  and  seamen  are  excluded  from  all 
participation  in  the  business  ? No  law  has  bestowed  the  right  upon 
army  officers  more  than  upon  other  persons.  If  men  are  to  be 
hung  up  without  that  legal  trial  which  the  Constitution  guarantees 
to  them,  why  not  employ  commissions  of  clergymen,  merchants, 
manufacturers,  horse-dealers,  butchers,  or  drovers,  to  do  it  ? It  will 
not  be  pretended  that  military  men  are  better  qualified  to  decide 
questions  of  fact  or  law  than  other  classes  of  people;  for  it  is  known 
on  the  contrary  that  they  are,  as  a general  rule,  least  of  all  fitted  to 
perform  the  duties  that  belong  to  a judge. 

The  attorney-general  thinks  that  a proceeding  which  takes 
away  the  lives  of  citizens  without  a constitutional  trial  is  a most 
merciful  dispensation.  His  idea  of  humanity  as  well  as  law  is  em- 
bodied in  the  bureau  of  military  justice,  with  all  its  dark  and 
bloody  machinery.  For  that  strange  opinion  he  gives  this  curious 
reason:  that  the  duty  of  the  commander-in-chief  is  to  kill,  and  un- 
less he  has  this  bureau  and  these  commissions  he  must  “ butcher” 
indiscriminately  without  mercy  or  justice.  I admit  that  if  the  com- 
mander-in-chief or  any  other  officer  of  the  government  has  the 
power  of  an  Asiatic  king,  to  butcher  the  people  at  pleasure,  he 
ought  to  have  somebody  to  aid  him  in  selecting  his  victims,  as 
well  as  to  do  the  rough  work  of  strangling  and  shooting.  But  if 
my  learned  friend  will  only  condescend  to  cast  an  eye  upon  the  Con- 
stitution, he  will  see  at  once  tliat  all  the  executive  and  military  offi- 
cers are  completely  relieved  by  the  provision  that  the  life  of  a citi- 
zen shall  not  be  taken  at  all  until  after  legal  conviction  by  a court 
and  jury. 

You  cannot  help  but  see  that  military  commissions,  if  suffered 
to  go  on,  will  be  used  for  most  pernicious  purposes.  I have 
criticized  none  of  their  past  proceedings,  nor  made  any  allusion 
to  their  history  in  the  last  five  years.  But  what  can  be  the 
meaning  of  this  effort  to  maintain  them  among  us  ? Certainly 
not  to  punish  actual  guilt.  All  the  ends  of  true  justice  are  at- 
tained by  the  prompt,  speedy,  impartial  trial  which  the  courts 
are  bound  to  give.  Is  there  any  danger  that  crime  will  be 
winked  upon  by  the  judges  ? Does  any  body  pretend  that 
courts  and  juries  have  less  ability  to  decide  upon  facts  and  law 
than  the  men  who  sit  in  military  tribunals?  The  counsel  in  this 
cause  will  not  insult  you  by  even  hinting  such  an  opinion.  What 
righteous  or  just  purpose,  then,  can  they  serve?  None  whatever. 

But  while  they  are  utterly  powerless  to  do  even  a shadow  of 


516 


ARGUMENT  OF  JEREMIAH  S.  BLACK. 


good,  they  will  be  omnipotent  to  trample  upon  innocence,  to  gag 
the  truth,  to  silence  patriotism,  and  crush  the  liberties  of  the  coun- 
try. They  will  always  be  organized  to  convict,  and  the  conviction 
will  follow  the  accusation  as  surely  as  night  follows  the  day.  The 
government,  of  course,  will  accuse  none  before  such  a commission 
except  those  whom  it  predetermines  to  ruin  and  destroy.  The  ac- 
cuser can  choose  the  judges,  and  will  certainly  select  those  who  are 
known  to  be  the  most  ignorant,  the  most  unprincipled,  and  the 
most  ready  to  do  whatever  may  please  the  power  which  gives  them 
pay,  promotion  and  plunder.  The  willing  witness  can  be  found  as 
easily  as  the  superserviceable  judge.  The  treacherous  spy  and  the 
base  informer— those  loathsome  wretches  who  do  their  lying  by  the 
job — will  stock  such  a market  with  abundant  perjury,  for  the 
authorities  that  employ  them  will  be  bound  to  protect  as  well  as 
reward  them.  A corrupt  and  tyrannical  government,  with  such  an 
engine  at  its  command,  will  shock  the  world  with  the  enormity  of 
its  crimes.  Plied  as  it  may  be  by  the  arts  of  a malignant  priest- 
hood, and  urged  on  by  the  madness  of  a raving  crowd,  it  will  be 
worse  than  the  popish  plot,  or  the  French  revolution — it  will  be  a 
combination  of  both,  with  Fouquier  Tinville  on  the  bench,  and 
Titus  Oates  in  the  witness  box.  You  can  save  us  from  this  horri- 
ble fate.  You  alone  can  “ deliver  us  from  the  body  of  this  death.” 
To  that  fearful  extent  is  the  destiny  of  this  nation  in  your  hands. 


ARGUMENT  OF  DAVID  DUDLEY  FIELD, 

On  the  Constitutionality  of  the  “ Enforcement  Act.” 

[U.  S.  V,  Cruikshank,  2 Otto.] 

IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES,  OCTO- 
BER TERM,  1874. 


Constitutional  Law. — Congress  can  grant  and  secure  to  citizens  of 
the  United  States,  those  rights  alone,  which  are,  either  expressly  or  by 
implication,  within  its  jurisdiction.  The  violation  of  rights  which  are 
within  the  exclusive  protection  of  the  States,  are  not  indictable  under  an 
act  of  Congress. 


Analysis  of  Mk.  Field’s  Argument. 


1.  The  amendments  to  the  Constitution 

growing  out  of  the  war. 

2.  The  legislation  to  enforce  the  amend- 

ments. 

3.  The  offenses  charged  in  the  indictment. 

4.  Object  and  design  of  the  war  amend- 

ments. 

5.  Theory  of  the  prosecution. 

6.  Meaning  of  the  term  “ appropriate  leg- 

islation.” 

7.  The  express  and  implied  prohibitions  of 

power  within  the  Constitution. 

8.  Limitations  upon  the  mode  of  enforcing 

delegated  powers. 

9.  The  legislation  to  enforce  the  amend- 

ments invalid. 

10.  The  tendency  towards  the  centralization 

of  power. 

11.  Rule  of  interpretation  as  to  the  new 

amendments.  * 

12.  Two  propositions  which  embrace  the 

theory  of  the  defense. 


13.  Congress  has  no  right  to  anticipate  the 

action  of  a State. 

14.  Failure  to  provide  a remedy  not  equiv- 

alent to  the  deprivation  of  a right. 

15.  A prohibition  of  the  exercise  of  power, 

does  not  confer  upon  Congress  the 
power  prohibited. 

16.  Mode  in  which  Congress  may  legally 

enforce  prohibitions  upon  the  States. 

17.  Constitutional  mode  of  enforcing  the 

amendments. 

18.  How  State  laws  may  be  prevented  from 

becoming  operative. 

19.  The  legislation  assumes  that  Congress 

has  powers  which  it  does  not  possess. 

20.  Second  proposition. — Theory  and  object 

of  government. 

21.  Practical  results  of  the  theory  of  the 

prosecution. 

22.  Rules  of  interpretation  heretofore 

adopted. 


The  Greek  legends  and  poetry  teach  that  the  golden  age  is  in  the  past.  The 
wonderful  march  of  improvement  which  marks  the  closing  century  as  the  most 
important  which  has  yet  occurred;  the  universal  dissemination  of  knowledge, 
which  has  done  so  much  for  the  welfare  of  the  race  ; the  remedies  which  are 
being  contrived,  under  a progressive  civilization,  to  perfect  and  protect  the  rec- 
ognized rights  and  liberties  of  the  individual  against  the  encroachments  and 

[5171 


518 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


usurpations  of  arbitrary  power;  seem  to  demonstrate  that  the  golden  age  is  in 
the  future.  The  age  in  which  men  are  governed  least,  will  be  that  ideal  age. 
To  that  we  are  approaching.  Hence  the  highest  and  most  interesting  of  secular 
problems,  which  has  engaged  the  attention  of  men,  has  been  to  establish  a per- 
fect government;  and  the  solution  of  this  question  seems  to  have  been  reserved 
for  the  genius  of  the  American  people.  It  is  true  that  a pure  democracy  existed 
at  one  time  in  Greece,  and  republican  forms  of  government  have  flourished  to  a 
certain  extent  at  different  periods,  but  the  realization  of  perfection  has  never 
been  approached,  until  the  fact  of  American  independence  finally  led  to  the  es- 
tablishment of  the  model  government  of  the  world,  “ an  indestructible  union  of 
indestructible  States.”  The  theory  which  has  prevailed  as  to  the  object  and 
nature  of  government  among  the  splendid  empires  of  the  Orient,  has  been  re- 
versed. The  old  notion,  that  the  king  was  the  source  and  fountain  of  all  power, 
has  given  way  entirely  to  the  opposite  theory,  that  all  power  is  in  the  people,  and 
is  delegated  under  express  and  clearly  defined  limitations  to  be  exercised  by  the 
ruler.  That  the  right  to  rule  does  not  descend  by  divine  appointment,  but  in- 
heres in  the  people,  to  bo  exercised  by  such  servants  as  they  may  choose,  in  such 
manner  as  they  may  ordain. 

The  union  of  the  States  in  the  American  republic,  presents  an  apparently 
complex,  but  in  reality  an  exceedingly  simple  and  harmonious  system.  The 
powers  and  workings  of  this  dual  government  forms  the  subject  of  the  argument 
here  presented. 

When  the  Union  was  framed,  jealousies  arose  between  the  States  and  the 
general  government,  as  to  the  extent  of  the  powers  possessed  by  each,  provoking 
a discussion  which  finally  culminated  in  a civil  war.  The  results  of  the  conflict 
are  embraced  within  the  three  last  amendments  to  the  Constitution,  forbidding 
the  existence  of  slavery,  and  prohibiting  the  States  from  interfering  with  the 
rights  and  privileges  of  citizens  of  the  United  States  on  account  of  race  or  color.i 
Out  of  the  legislation  to  enforce  these  amendments,  the  controversy  in  Cruiks- 
hank’s  case  arose,  upon  the  following  facts: 

William  I.  Cruikshank  and  ninety-six  others,  were  indicted  in  the  United 
States  Circuit  Court  for  the  District  of  Louisiana,  charged  with  banding  and  con- 
spiring together  to  injure,  oppress,  threaten  and  intimidate  Levi  Nelson  and  Alex- 
ander Tillman,  citizens  of  the  United  States,  of  African  descent,  and  persons  of 
color,  with  the  intent  thereby  to  hinder  and  deprive  them  in  their  free  enjoyment 
of  certain  rights  and  privileges  which,  it  was  claimed,  were  granted  and  secured 
to  them,  in  common  with  all  other  good  citizens  of  the  United  States,  by  the  Con- 
stitution and  laws  of  the  United  States.  The  indictment  contained  thirty-two 
counts,  sixteen  of  which  were  framed  under  the  sixth,  and  sixteen  under  the  sev- 
enth section  of  an  act  of  Congress,  entitled  “An  Act  to  enforce  the  rights  of  citizens 
of  the  United  States,”  &c.,  approved  May  30,  1870,  known  as  the  “ Enforcement 
Act.”  The  present  controversy  concerns  only  that  portion  of  the  indictment  under 
the  sixth  section,  upon  which  alone  three  of  the  defendants  were  convicted, 
the  others  having  been  acquitted  of  all  the  charges.  Of  these  sixteen  counts  there 
were  two  series,  eight  charging  the  defendants  with  “ banding,”  and  eight  with 
“ conspiring,”  to  deprive  and  hinder  Nelson  and  Tillman  in  the  exercise  and  enjoy- 
ment of  rights  and  privileges,  substantially  as  follows  : (i)  Interfering  with  their 

^ For  text  of  the  amendments,  see  Appendix,  p.  728. 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT”  519 


right  to  assemble  with  each  other  and  with  other  good  citizens  of  the  United 
States,  for  lawful  purposes;  (2)  Interfering  with  their  right  to  bear  arms  for  lawful 
purposes;  (3)  With  having  taken  away  their  lives  and  liberty  without  due  process  of 
law;  (4)  Interfering  with  their  right  to  the  equal  protection  of  the  laws  secured  to 
white  citizens;  (5)  Interfering  with  their  right  to  vote  at  State  elections;  (6)  With 
having  put  them  in  fear  and  bodily  harm,  for  having  voted  at  State  elections 
(7)  Interfering,  on  account  of  their  race  and  color,  with  their  rights  and  privi 
leges  as  secured  to  them,  in  common  with  all  other  citizens,  by  the  laws  of  the 
United  States  and  of  the  State  of  Louisiana. 

Upon  these  counts,  three  of  the  defendants  were  convicted,  and  upon 
the  verdict  counsel  moved  an  arrest  of  judgment,  upon  the  ground  (i)  That  the 
matters  charged  were  not  offenses  against  the  laws  of  the  United  States,  nor 
within  the  jurisdiction  of  the  federal  courts;  but  were  exclusively  within  the  ju- 
risdiction of  the  State  courts;  (2)  That  the  Act  of  Congress  upon  which  the  in- 
dictment was  framed,  was  unconstitutional;  (3)  That  the  indictment  was  defect- 
ive, in  that  certain  of  the  counts  were  indefinite,  vague  and  uncertain,  charging 
no  particular  offense.  The  court  were  divided  in  opinion  as  to  granting  the 
motion,  and  certified  the  questions  to  the  Supreme  Court. 

The  issues  presented  were,  whether  the  people,  in  amending  the  Constitution, 
intended  thereby  to  give  power  to  the  general  government  to  enforce  rights  which 
had  heretofore  been  wholly  enforced  and  protected  by  the  States?  or  was  the  ob- 
ject to  prohibit  the  States  from  withholding  the  protection  of  its  laws  from  any 
particular  class  of  citizens  ? Was  it  intended  to  give  Congress  power  to  enforce 
the  rights,  or  to  prohibit  the  States  from  withholding  from  any  citizen  the  equal 
protection  of  its  laws  ? Has  any  citizen  acquired  thereby  any  new  rights,  or  do 
the  amendments  simply  guarantee  existing  rights,  giving  Congress  power  to  en- 
force the  guarantee  ? 

These  are  the  questions  discussed  by  Mr.  Field,  in  his  very  elaborate  and 
careful  argument.  He  takes  the  broad  ground,  that  all  the  rights  which  it  was 
claimed  had  been  violated  and  obstructed,  were  within  the  exclusive  protection 
of  the  States,  and  until  a State  had,  by  legislation  or  otherwise,  denied  these 
rights  to  any  citizen  or  class  of  citizens,  the  acts  passed  by  Congress  to  enforce 
the  war  amendments  did  not  become  operative;  that  the  failure  of  a State  to 
provide  a remedy  for  the  enforcement  of  such  rights,  was  not  a denial  of  them 
within  the  meaning  of  the  fourteenth  amendment,  and  did  not  bring  it  within 
the  prohibition  declaring  that  no  State  shall  make  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States,  or  deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of  law,  or  deny  to  any  per- 
son within  its  jurisdiction,  the  equal  protection  of  the  laws;  that  because  a 
State  did  not  provide  a remedy  for  the  violation  of  rights  within  its  jurisdiction, 
that  fact  did  not  operate  to  confer  upon  Congress  the  power  to  enforce  the  rights 
or  provide  remedies  therefor,  and  that  an  indictment  under  a penal  statute,  pro- 
viding for  such  enforcement,  was  without  authority,  illegal  and  void. 

The  court  held.  Chief  Justice  Waite  writing  the  opinion,  that  the  duties  and 
rights  belonging  to  citizens  within  the  original  jurisdiction  of  the  States,  still  re- 
main there,  and  the  only  obligation  resting  upon  the  national  government,  is  to 
see  that  the  States  do  not  deny  them.  That  the  right  to  vote  is  derived  from  the 
State,  but  the  right  of  exemption  from  discrimination  in  the  exercise  of  that 


520  ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


right,  on  account  of  race  or  color,  is  conferred  and  secured  by  the  fifteenth 
amendment.  The  court  held,  further,  that  every  citizen  was  entitled  to  the  equal 
protection  of  the  laws,  and  this  right  was  also  secured  by  the  Constitution,  but 
affirmed  the  order  arresting  the  judgment  and  ordering  a discharge  of  the  de- 
fendants, upon  the  ground  that  these  offenses  were  not  stated  with  certainty,  but 
w'ere  vague  and  indefinite,  and  not  sufficient  to  support  the  indictment.  The 
case  was  argued  on  behalf  of  the  prosecution,  by  Attorney-General  Williams  and 
Mr.  Solicitor-General  Phillips,  and  on  behalf  of  the  defendants  in  error,  by  Mr. 
Reverdy  Johnson,  Mr.  David  Dudley  Field,  Mr.  Philip  Phillips,  and  Mr.  R.  H. 
Marr.  Mr.  Field  said  : 

May  it  please  the  Court  : — The  argument  that  I shall  have 
the  honor  to  address  to  the  court  will  be  confined  to  the  question  of 
compatibility  between  the  federal  Constitution  and  the  legislation  of 
Congress,  which  is  supposed  to  authorize  the  present  indictment. 

It  is  indeed  true,  that  if  the  form  of  the  accusation  is  not  con- 
formable to  the  act  of  Congress,  the  defendants  are  entitled  to  be 
presently  discharged,  but  inasmuch  as  a new  indictment  might  pos- 
sibly be  preferred,  supposing  the  present  to  fail  for  defect  of  form, 
this  question  is  insignificant  compared  with  the  other. 

For  my  part  I shall  leave  the  matter  of  procedure  where  it  now 
stands  upon  the  argument,  and  confine  myself  to  the  question  of 
conformity  or  non-conformity  of  the  act  of  Congress  to  the  Consti- 
tution. If  the  legislation  upon  which  this  indictment  rests  is  con- 
formable to  the  organic  law  of  this  country,  then  it  matters  little 
what  is  or  is  not  decided  about  the  forms  of  proceeding.  The  sub- 
stance of  American  constitutional  government,  as  received  from 
the  Fathers,  will  have  gone,  and  the  forms  will  not  be  long  in  fol- 
lowing. 

Let  us  reduce  and  formulate  the  question,  if  we  can,  so  as  to 
separate  the  incidental  from  the  essential,  in  order  that  our  atten- 
tion may  be  withdrawn  from  all  other  considerations  than  that  of 
the  one  fundamental  and  permanent  theory,  upon  which  this  legis- 
lation must  stand,  if  it  stand  at  all. 

I.  The  amendments  to  the  Constitution  growing  out  of 

THE  WAR. 

The  13th  amendment  to  the  Constitution  (1865)  declares,  that 
neither  slavery  nor  involuntary  servitude,  except  in  punishment 
of  crime,  shall  exist  within  the  United  States,  and  authorizes  Con- 
gress to  enforce  the  declaration  by  appropriate  legislation. 

The  14th  amendment  (1868),  after  defining  citizenship  of  the 
United  States,  prohibits  the  States  (i)  from  making  or  enforcing 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.’ 


521 


any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States  ; (2)  from  depriving  any  person  of  life,  liberty 
or  property,  without  due  process  of  law  ; and  (3)  from  denying  to 
any  person  within  their  jurisdiction  the  equal  protection  of  the 
laws.  And  it  authorizes  Congress  to  enforce  the  provisions  of  the 
amendment  by  appropriate  legislation. 

The  15th  amendment  (1870)  prohibits  the  States  from  denying 
or  abridging  the  rights  of  citizens  of  the  United  States  to  vote,  on 
account  of  race,  color  or  previous  condition  of  servitude.  This 
prohibition  also  Congress  is  authorized  to  enforce  by  appropriate 
legislation. 

2.  The  legislation  to  enforce  the  amendments. 

Professing  to  act  under  the  authority  of  these  amendments. 
Congress  has  passed  five  acts,  four  only  of  which  were  in  existence 
at  the  time  of  the  indictment  now  under  consideration  ; one  called 
the  Civil  Rights  Act,  passed  April  9,  1866;  the  second  called  the 
Enforcement  Act,  passed  May  31,  1870  ; the  third,  amending  this, 
passed  February  28,  1871,  and  a fourth  act,  passed  April  20,  1871. 

The  Civil  Rights  Act  is  first  in  order  of  time.  Section  i, 
after  declaring  that  all  persons  born  in  the  United  States,  and  not 
subject  to  any  foreign  power,  excluding  Indians  not  taxed,  are  citi- 
zens of  the  United  States,  enacts,  that  “such  citizens,  of  every  race 
and  color,  without  regard  to  any  previous  condition  of  slavery  or 
involuntary  servitude,  except  as  a punishment  for  crime,  whereof 
the  party  shall  have  been  duly  convicted,  shall  have  the  same  right 
in  every  State  and  Territory  of  the  United  States  to  make  and  en- 
force contracts,  to  sue,  be  parties,  and  give  evidence,  to  inherit, 
purchase,  lease,  sell,  hold  and  convey  real  and  personal  property, 
and  to  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  person  and  property,  as  is  enjoyed  by  white  citizens,  and 
shall  be  subject  to  like  punishment,  pains  and  penalties,  and  to  none 
others.”  Section  2 enacts,  that  “any  person,  who,  under  color  of 
any  law,  statute,  ordinance,  regulation  or  custom,”  shall  cause  any 
inhabitant — the  word  citizen  being  dropped — “ to  be  subjected  to 
the  deprivation  of  any  right  secured  or  protected  by  this  act,”  shall 
be  guilty  of  misdemeanor.  Section  3 confers  upon  the  federal 
courts  jurisdiction  over  infractions  of  the  act.  Sections  4 and  5 
provide  an  army  of  officers  to  enforce  the  act.  Section  6 enacts 
penalties  for  obstructing  or  resisting  the  execution  of  the  act.  The 
remaining  sections,  7,  8,  9 and  10,  are  not  material  to  the  present 
inquiry. 


522 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


The  first  section  of  the  Enforcement  Act  declares,  that  all 
citizens  of  the  United  States,  otherwise  qualified,  shall  be  al- 
lowed to  vote  at  all  elections,  without  distinction  of  race,  color,  or 
previous  servitude.  Section  2 provides,  that  if  by  the  law  of  any 
State  or  Territory  a prerequisite  to  voting  is  necessary,  equal  op- 
portunity for  it  shall  be  given  to  all,  without  distinction,  &c.;  and 
any  person  charged  with  the  duty  of  furnishing  the  prerequisite, 
who  refuses,  or  knowingly  omits  to  give  full  effect  to  this  section, 
shall  be  guilty  of  misdemeanor.  Section  3 provides,  that  an  offer  of 
performance,  in  respect  to  the  prerequisite,  when  proved  by  affida- 
vit of  the  claimant,  shall  be  equivalent  to  performance  ; and  any 
judge  or  inspector  of  election  who  refuses  to  accept  it  shall  be 
guilty,  &c.  Section  4 provides,  that  any  person  who,  by  force,  brib- 
ery, threats,  intimidation  or  other  unlawful  means,  hinders,  delays, 
prevents,  or  obstructs  any  citizen  from  qualifying  himself  to  vote, 
or  combines  with  others  to  do  so,  shall  be  guilty,  &c.  Section  5 
provides,  that  any  person  who  prevents,  hinders,  controls,  or  intimi- 
dates any  person  from  exercising  the  right  of  suffrage,  to  whom  it 
is  secured  by  the  15th  amendment,  or  attempts  to  do  so,  by  bribery 
or  threats  of  violence,  or  deprivation  of  property  or  employment, 
shall  be  guilty,  &c.  Section  6 provides,  that  “ if  two  or  more  per- 
sons shall  band  or  conspire  together,  ^ ^ ^ intent  to 

violate  any  provision  of  this  Act,”  that  is,  of  either  act,  or  to 
injure,  oppress,  threaten,  or  intimidate  any  citizen,  with  intent 
to  prevent  or  hinder  his  free  exercise  and  enjoyment  of  any 
right  or  privilege  granted  or  secured  to  him  by  the  Constitu- 
tion or  laws  of  the  United  States,  or  because  of  his  having 
exercised  the  same,  such  persons  shall  be  held  guilty  of  felony,” 
&c.  Section  7 provides,  that  if  in  violating  any  provision  of 
§§  5 and  6 any  other  offense  is  committed,  that  shall  be  visited  with 
such  punishments  as  are  prescribed  for  like  offenses  by  the  laws  of 
the  State.  Sections  8,  9 and  10  give  jurisdiction  to  certain  courts, 
provide  commissioners  and  direct  the  execution  of  warrants,  &c. 
Section  1 1 provides  penalties  for  preventing  or  obstructing  the  ex- 
ecution of  the  act.  Section  12  regulates  the  fees  of  officers.  Sec- 
tion 13  authorizes  the  President  to  employ  the  public  forces.  Sec- 
tions 14  and  15  relate  to  the  holding  of  office  by  persons  disqualified 
under  the  14th  amendment.  Section  16  enacts,  that  ‘‘All  persons 
within  the  jurisdiction  of  the  United  States  shall  have  the  same 
right  in  any  State  and  Territory  to  make  and  enforce  contracts,  to 
sue,  be  parties,  give  evidence,  and  to  the  full  and  equal  benefit  of 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  523 


all  laws  and  proceedings  for  the  security  of  persons  and  property  as 
is  enjoyed  by  white  citizens,  and  shall  be  subject  to  like  punish- 
ments,  pains,  penalties,  licenses  and  exactions  of  any  kind,  and  none 
other,”  &c.;  and  that  no  tax  or  charge  shall  be  imposed  upon  im- 
migrants from  one  country  not  imposed  upon  immigrants  from  any 
other.  Section  17  enacts,  that  any  person  who,  “under  color  of 
any  law,  statute,  ordinance,  regulation  or  custom,”  subjects  any  in- 
habitant to  the  deprivation  of  any  right  secured  or  protected  by 
§ 16,  or  “to  different  punishment,  pains  or  penalties,  on  account 
of  such  person  being  an  alien,  or  by  reason  of  his  color  or  race, 
than  is  prescribed  for  the  punishment  of  citizens,”  shall  be  guilty, 
&c.  Section  18  re-enacts  the  Civil  Rights  Act.  The  remaining 
sections,  19,  20,  21,  22,  23,  relate  to  elections,  and  construct  a very 
large  and  complicated  piece  of  machinery  for  their  management. 

The  amendatory  Act,  passed  February  28,  1871,  relates  chiefly 
to  elections  of  members  of  the  House  of  Representatives  ; the  pro- 
visions of  which,  and  of  the  4th  Act,  however  extraordinary,  are 
not  within  the  scope  of  our  present  inquiry. 

3.  The  offenses  charged  in  the  indictment. 

By  authority  of  this  legislation,  ninety-seven  persons  were  in- 
dicted together  in  the  Circuit  Court  of  the  United  States  for  the 
District  of  Louisiana,  and  three  of  them,  the  present  defendants, 
were  found  guilty  upon  the  first  sixteen  counts.  The  indictment 
was  found  under  the  6th  and  7 th  sections  of  the  Enforcement  Act, 
sixteen  counts  being  for  simple  conspiracy  under  the  6th  section, 
and  the  other  sixteen  being  for  conspiracy,  with  overt  acts  result- 
ing in  murder. 

The  first  count  was  for  banding  together,  with  intent  “ unlaw- 
fully and  feloniously  to  injure,  oppress,  threaten  and  intimidate” 
two  citizens  of  the  United  States  “of  African  descent  and  persons 
of  color,”  “with  the  unlawful  and  felonious  intent  thereby”  them 
“ to  hinder  and  prevent  in  their  respective  free  exercise  and  enjoy- 
ment of  their  lawful  right  and  privilege  to  peaceably  assemble  to- 
gether with  each  other  and  with  other  citizens  of  the  said  United 
States  for  a peaceable  and  lawful  purpose,”  The  second  count  avers 
an  intent  to  hinder  and  prevent  the  exercise  by  the  same  persons  of 
the  “right  to  keep  and  bear  arms  for  a lawful  purpose.”  The  third 
avers  an  intent  to  deprive  the  same  persons  “ of  their  respective 
several  lives  and  liberty  of  person  without  due  process  of  law.” 
The  fourth  avers  an  intent  to  deprive  the  same  persons  of  the  “ free 


52-1  ARGUMENT  OF  DAYID  DUDLEY  FIELD  ON  THE 

exercise  and  enjoyment  of  the  right  and  privilege  to  the  full  and 
equal  benefit  of  all  laws  and  proceedings  for  the  security  of  persons 
and  property”  enjoyed  by  white  citizens.  The  fifth  avers  an  intent 
to  hinder  and  prevent  the  same  persons  “ in  the  exercise  and  en- 
joyment of  the  rights,  privileges,  immunities  and  protection  granted 
and  secured  to  them  respectively  as  citizens  of  the  said  United 
States,  and  as  citizens  of  the  said  State  of  Louisiana,  by  reason  of 
and  for  and  on  account  of  the  race  and  color  ” of  the  said  persons. 
The  sixth  avers  an  intent  to  hinder  and  prevent  the  same  persons 
in  “ the  free  exercise  and  enjoyment  of  the  several  and  respective 
right  and  privilege  to  vote  at  any  election  to  be  thereafter  by  law 
had  and  held  by  the  people  in  and  of  the  said  State  of  Louisiana.” 
The  seventh  avers  an  intent  ‘‘  to  put  in  great  fear  of  bodily  harm, 
injure  and  oppress  ” the  same  persons  “ because  and  for  the  reason  ” 
that,  having  the  right  to  vote,  they  had  voted.  The  eighth  avers 
an  intent  “to  prevent  and  hinder”  the  same  persons  “in  their  sev- 
eral and  respective  free  exercise  and  enjoyment  of  every,  each,  all 
and  singular  the  several  rights  and  privileges  granted  and  secured  ” 
to  them  “by  the  Constitution  and  Laws  of  the  United  States.” 
The  next  eight  counts  are  a repetition  of  the  first  eight,  except  that 
instead  of  the  words  “ band  together ” the  words  “combine,  con- 
spire and  confederate  together”  are  used. 

This  indictment,  or  that  portion  of  it  upon  which  these  defend- 
ants have  been  convicted,  is  supposed  to  be  justified  by  the  6th 
section  of  the  Enforcement  Act,  and  that  section  is  said  to  rest 
upon  the  late  amendments.  In  considering  the  question,  whether 
it  is  or  is  not  supported  by  them,  I assume,  what  cannot  be  dis- 
puted, that  before  the  late  amendments  this  section,  and  the  same 
may  be  said  of  the  other  sections,  would  have  been  beyond  the 
competency  of  Congress.  The  point  of  contention,  therefore,  is 
whether  the  amendments  have  conferred  the  power. 

4.  Object  and  design  of  the  war  amendments. 

Upon  this  my  first  proposition  is,  that  it  was  not  the  design  of 
the  people,  in  adopting  them,  to  change  the  fundamental  character 
of  their  government,  or  to  alter  the  relations  between  the  Union 
and  the  States.  They  intended,  that  the  Union  should  continue 
to  "be  what  it  had  been  before,  to  use  the  language  slightly  changed 
of  the  late  Chief- Justice,  an  indestructible  union  of  indestructible 
States. 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT”  625 

The  events  of  the  last  fifteen  years  are  not  secrets.  The  origin 
of  the  war,  the  war  itself,  the  questions  to  which,  in  its  varying 
progress,  it  gave  rise,  and  its  great  results,  are  known  of  all  men. 
It  established  the  unity  of  the  nation  and  the  freedom  of  the  slaves. 
Upon  the  final  settlement,  while  it  was  not  thought  necessary  to 
make  any  constitutional  changes  in  respect  to  the  claim  of  seces- 
sion and  the  relation  of  the  States  to  the  Union,  it  was  thought 
necessary  to  provide  for  the  equality  of  the  freedmen. 

In  doing  this,  two  courses  were  open  ; one  was,  to  place  them 
and  all  their  rights  and  relations  under  the  cognizance  of  the  fed- 
eral power,  and  the  other  was  to  leave  them  as  they  were,  under 
the  cognizance  of  the  States,  but  to  provide  that  these  should  make 
no  discrimination  to  their  disadvantage.  The  latter  course  was 
adopted.  The  articles  are  congruous  and  plainly  adapted  to  that 
end.  They  all  imply  that,  apart  from  the  prohibitions,  the  States 
have  plenary  power  over  the  subject,  and  they  leave  that  power  as 
it  was,  with  the  single  qualification,  that  it  shall  treat  all  alike,  the 
emancipated  slaves  side  by  side  with  their  old  masters.  It  was  in 
this  respect  somewhat  like  the  treaty  stipulation  that  we  often  make, 
agreeing  that  the  nation  treating  with  us  shall  be  put  on  the  foot- 
ing of  the  most  favored  nations,  whith,  while  it  leaves  us  at  full 
liberty  to  make  what  new  treaties  or  enact  what  new  laws  we  please, 
obliges  us  to  grant  to  the  one  what  we  grant  to  the  others. 

It  was  the  design  of  the  amendments,  and  their  whole  design, 
to  raise  the  freedmen  to  an  equality  with  their  late  masters  before 
the  law,  and  to  give  the  blacks  all  the  rights  which  the  whites  en- 
joyed. There  was  no  complaint  that  the  whites  were  oppressed. 
There  was  no  mischief  in  that  respect  to  remedy.  They  did  not 
need  new  guarantees,  and  none  were  intended  for  them.  The  com- 
plaint to  be  relieved,  the  mischief  to  be  remedied,  the  guarantee  to 
be  provided,  had  respect  to  the  lately  subject  race,  and  to  that 
alone.  In  saying  this,  we  of  course  leave  out  of  view  the  tempo- 
rary provisions  respecting  the  treatment  of  the  rebels  and  the  rebel 
debt.  So  understood,  there  is  symmetry  in  the  whole  of  the  amend- 
ments ; they  are  all  conformed  to  one  plan,  and  carry  out  one  great 
purpose.  Thus  the  13th  amendment  decreed  the  emancipation  of 
the  slaves  ; the  14th  gave  them  the  privileges  of  citizens  of  the 
United  States,  and  to  assure  them  equality  of  civil  rights  and  debar 
forever  discriminating  legislation  to  their  oppression,  forbade  the 
States  to  deprive  any  person  of  the  equal  protection  of  the  laws,  or 
of  life,  liberty  or  property,  without  due  process  of  law  ; and  finally. 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  UN  THE 

the  15th  amendment  gave  them  equality  of  political  rights,  to  the 
extent  of  an  equal  right  to  vote. 

5.  Theory  of  the  prosecution. 

The  general  question  now  is,  what  may  Congress  do  to  enforce 
the  prohibitions  thus  directed  against  the  States  ? The  particular 
question  upon  which  this  case  depends  is,  whether,  under  color  of 
enforcing  the  prohibitions,  and  before  any  State  has  violated  them. 
Congress  can  anticipate  and  prevent  their  violation  by  taking  into 
its  own  hands  the  regulation  of  the  whole  subject. 

The  penal  legislation  upon  which  this  indictment  is  founded,  can 
be  defended  only  on  the  assumption  that  Congress  has  in  its  keep- 
ing the  various  rights  which  the  legislation  aims  to  protect.  The 
object  of  punishment  is  the  prevention  of  crime,  and  crime  is  the 
violation  of  right.  The  United  States  cannot  punish  the  violation 
of  State  laws  any  more  than  the  States  can  punish  the  violation  of 
federal  laws.  When  the  former  assert  their  competency  to  punish 
violations  of  the  right  to  assemble,  the  right  to  bear  arms,  the  right 
to  life,  liberty  and  property,  the  right  to  vote,  the  right  to  the  equal 
protection  of  the  laws,  and  the  privileges  and  immunities  of  citizens 
of  the  United  States,  they  assert  their  competency  to  enforce  each 
and  all  of  these  rights,  privileges  and  immunities,  and  the  compe- 
tency to  enforce  includes,  of  course,  the  competency  to  enumerate 
and  define  all  that  are  enforced. 

Such  may  be  undoubtedly  one  way  of  accomplishing  the  object. 
You  can  prevent  a thing  being  done  in  a manner  displeasing  to  you 
by  doing  it  yourself.  Congress  can  prevent  the  States  from  making 
a wrong  regulation  by  itself  making  all  the  regulations.  But  is  that 
the  fair  purport  of  the  authority  ? Is  it  the  legitimate  interpre- 
tation of  a charter  of  federal  government,  by  which  power  is  care- 
fully partitioned  between  the  Union  and  the  States,  to  say  that,  if 
the  former  has  authority  to  prevent  the  latter  from  doing  a wrong 
thing,  it  may  prevent  their  doing  anything,  by  doing  everything 
itself  ? It  seems  to  me  the  more  natural  and  convenient  way  of 
treating  the  subject,  to  discuss,  first  the  general  propositions,  and 
then  to  apply  them  to  the  case  in  hand. 

6.  Meaning  of  the  term  “appropriate  legislation.” 

The  prohibitions  of  these  amendments  of  the  last  decade  are 
reasonably  clear ; their  general  purpose  is  unmistakable  ; they  are 
laid  upon  the  States,  and  Congress  has  express  power  to  enforce 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  527 


them  by  appropriate  legislation.  So  much  is  indisputable.  The 
dispute  begins  when  the  word  appropriate  is  to  be  interpreted. 
What  is,  and  what  is  not,  appropriate  legislation  ? And  who  is  to 
judge  of  the  appropriateness  ? These  are  the  cardinal  questions 
upon  which  hinges  the  decision  of  the  present  cause,  and  with  it 
the  determination  in  no  small  measure  of  the  future  of  the  country. 

The  first  observation  to  be  made  is  that  the  amendments  being 
made  part  of  the  Constitution  are  to  be  construed  in  connection 
with  the  original  parts  of  it,  and  according  to  the  well-understood 
and  long-established  interpretation  of  that  instrument.  Congress  is 
within  certain  limits,  the  exclusive  judge  of  the  appropriateness  of 
its  legislation  to  the  end  designed  ; but  that  there  are  such  limits, 
and  beyond  them.  Congress  may  not  pass. 

The  rules  of  interpretation  applicable  to  the  federal  Constitu- 
tion, have  not  been  in  any  respect  changed  by  the  amendments. 
The  question  is  always,  first,  what  is  the  natural  sense  of  the  lan- 
guage used,  and  then,  if  that  be  doubtful,  what  was  the  intention  of 
the  law-givers,  that  is,  the  people  of  the  United  States.  In  the 
natural  sense  is  included  not  only  that  of  the  particular  provision 
under  consideration,  but  the  other  provisions  of  the  same  institu- 
tion. In  short,  when  the  question  arises,  what  legislation  Congress 
may  adopt  to  enforce  the  amendment,  the  answer  that  should  fol- 
low is,  that  it  must  be  appropriate,  and  must  not  be  prohibited  by 
other  provisions  of  the  Constitution,  either  expressly  or  by  impli- 
cation. 

7.  The  express  and  implied  prohibitions  oe  power  within 
THE  Constitution. 

There  are  certain  express  prohibitions,  which  are  so  many  qual- 
ifications of  the  powers  granted,  and  there  are  also  implied  prohi- 
bitions. For  example.  Congress  could  not,  under  color  of  prevent- 
ing a State  from  doing  certain  things,  destroy  the  State,  or  any  of 
its  essential  attributes.  If  it  were  proved,  beyond  question,  that  to- 
morrow the  legislature  of  Massachusetts,  if  not  prevented  by  Con- 
gress, would  pass  a law  denying  suffrage  to  every  colored  man  in 
the  commonwealth.  Congress  could  not,  by  any  legislation  what- 
ever, terminate  the  session  of  the  legislature,  or  authorize  the  Pres- 
ident to  march  the  garrison  of  Fort  Warren  into  the  State  House 
and  turn  the  members  out  of  doors.  Congress  could  not,  I say,  do 
this.  I do  not  confine  myself  to  saying  it  would  not ; I say  that  if 
it  were  so  minded  it  could  not,  and  every  respectable  authority  in 
the  land — legislative,  executive  and  judicial — would  so  pronounce. 


528  ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 

Why  could  not  Congress  do  this  ? let  me  ask.  The  answer  is,  that 
the  State  of  Massachusetts  is  a self-existing  and  indestructible 
member  of  the  American  Union,  and  neither  Congress  nor  any 
other  department  of  the  federal  government  has,  expressly  or  by 
implication,  power  to  destroy  any  essential  attribute  of  the  sove- 
reignty of  that  commonwealth.  The  word  sovereignty  I use  in  its 
American  sense  of  supreme  power,  partitioned  between  the  Union 
and  each  of  the  States.  Neither  the  one  nor  the  other  is  an  abso- 
lute sovereign  ; each  power  is  sovereign  in  its  own  sphere.  The 
dividing  line  between  them  is  as  marked  to  the  eye  of  a lawyer  as 
if  it  were  territorial. 

Congress,  then,  is  judge  of  the  means  to  be  chosen  for  attaining 
a desired  end,  only  in  this  sense,  that  it  must  choose  appropriate 
means,  and  such  as  are  not  expressly  or  by  implication  prohibited. 
Certain  means  are  expressly  prohibited,  as,  for  example,  the  es- 
tablishment of  an  order  of  nobility.  Other  means  are  by  implica- 
tion prohibited,  as,  for  example,  the  destruction  of  a State.  Con- 
gress is  not  expressly  prohibited  from  destroying  a State  ; the  im- 
plied prohibition,  however,  is  not  less  real  and  imperative.  After 
eliminating  these  prohibited  means  from  the  category  of  those 
which  are  eligible,  there  must  be  a still  further  elimination  of  all 
means  which  are  not  appropriate.  This  word  appropriate  is  one 
of  limitation.  Congress  is  not  clothed  with  power  to  enforce  the 
prohibition  by  every  kind  of  legislation,  but  by  appropriate  legis- 
lation. We  have,  then,  in  the  very  body  of  the  Constitution,  these 
limitations  upon  the  choice  of  means  by  Congress  ; they  must  not 
be  prohibited,  and  they  must  be  appropriate. 

When,  therefore,  it  is  said,  as  it  often  is,  that  Congress  is  the  ex- 
clusive judge  of  the  means  to  be  chosen  for  attaining  an  end,  the 
proposition  is  to  be  admitted  only  with  the  two  qualifications  that 
have  been  mentioned.  So  it  was  said  by  Madison,  Hamilton  and 
Jay,  in  the  Federalist ; so  it  was  said  by  Hamilton  in  his  argument 
for  a bank  of  the  United  States  ; so  it  was  said  by  Ch.  Justice 
Marshall  in  McCulloch  and  Maryland,  and  so  it  has  been  said, 
scores  of  times  since,  by  judges  of  this  court  and  other  judges, 
State  and  federal. 

8.  Limitations  upon  the  mode  of  enforcing  delegated 

POWERS. 

To  illustrate  the  rule  that  no  means  can  be  adopted  which  con- 
travene the  implied  as  well  as  the  express  limitations  of  the  Const!- 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  ^29 

tution,  let  us  suppose  a few  cases.  Congress  could  not  authorize 
the  criminal  prosecution  of  a State  legislator  who  voted  for  a bill 
within  the  prohibition.  Why  not  ? Because  that  would  be  incom- 
patible with  the  independence  of  the  State  legislatures,  an  inde- 
pendence essential  to  the  sovereignty,  or,  if  the  expression  is  liked 
better,  the  partial  independence,  or  the  autonomy,  of  the  States. 
Congress  could  not  authorize  an  injunction  against  a State  legis- 
lature, forbidding  it  to  pass  such  a bill,  for  the  like  reason.  Con- 
gress could  not  subject  to  criminal  process  the  judges  of  a State 
court  for  deciding  against  the  constitutionality  of  the  enforcement 
act,  and  the  reason  here  is  the  same. 

There  are  many  limitations  upon  the  choice  of  means  beyond 
those  which  are  expressed.  They  are  implied  from  the  nature  of 
the  government,  the  history  of  the  country  and  the  traditions  of  the 
people.  The  right  to  declare  an  act  invalid,  because  incompatible 
with  the  Constitution,  applies  with  the  same  effect  where  the  incom- 
patibility relates  to  the  implied,  as  where  it  relates  to  the  express 
limitations  of  the  Constitution. 

General  language,  though  in  itself  unambiguous,  is  limited  by 
the  circumstances  in  which  it  is  used.  Thus,  “the  United  States 
shall  guarantee  to  every  State  in  this  Union  a republican  form  of 
government.”  But  what  sort  of  a republican  government.^  Is 
there  any  express  provision  of  the  Constitution  which  forbids  Con- 
gress to  establish  in  a State,  whose  authorities  are  overthrown,  a 
government  like  that  of  Venice,  or  like  that  of  another  of  the  Ital- 
ian republics  of  the  middle  ages  ? According  to  the  classification 
of  writers  on  government,  Genoa  under  its  doges,  Florence  under 
its  dukes,  and  Poland  under  its  kings,  were  republics.  Why  may 
not  Congress  take  that  form  of  republican  government  now  exist- 
ing in  France,  or  that  lately  existing  in  Spain,  or  any  of  the  repub- 
lican forms  of  past  ages,  that,  for  instance,  of  the  Commonwealth  of 
England  under  Cromwell,  or  even  that  of  Poland  ? There  is  no 
reason  other  than  this,  that  there  are  certain  essential,  inherent,  in- 
eradicable principles  of  American  republican  government,  to  which 
the  framers  of  the  Constitution  referred,  and  by  which  Congress  is 
bound.  And  if  Congress  be  thus  limited,  the  courts  must  say  so 
whenever  the  question  is  brought  before  them.  What  otherwise 
could  prevent  Congress  from  establishing  in  a disorganized  State,  a 
government  of  military  dukes. 

In  all  that  I have  said  I am  justified  by  recent  decisions  of  this 
court.  Not  longer  ago  than  1868,  this  court,  speaking  by  its  late 
34 


530  ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


chief  justice,  uttered  these  memorable  words,  which  will  live  in  con- 
stitutional history  so  long  as  the  Constitution  lives  in  its  vigor; 
“ Not  only,  therefore,  can  there  be  no  loss  of  separate  and  inde- 
pendent autonomy  to  the  States  through  their  union  under  the  Con- 
stitution, but  it  may  be  not  unreasonably  said,  that  the  preservation 
of  the  States,  and  the  maintenance  of  their  governments,  are  as 
much  within  the  design  and  care  of  the  Constitution  as  the  preser- 
vation of  the  Union,  and  the  maintenance  of  the  national  govern- 
ment. The  Constitution  in  all  its  provisions,  looks  to  an  inde- 
structible Union,  composed  of  indestructible  States.”*  And,  in 
1870,  the  court,  speaking  by  Mr.  Justice  Nelson,  used  this  language: 
“The  general  government  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sover- 
eignties, acting  separately  and  independently  of  each  other,  within 
their  respective  spheres.  The  former  in  its  appropriate  sphere  is 
supreme,  but  the  States,  within  the  limits  of  their  powers  not 
granted,  or,  in  the  language  of  the  tenth  amendment,  ‘ reserved,'  are 
as  independent  of  the  general  government,  as  that  government, 
within  its  sphere,  is  independent  of  the  States.”*  And  again: 
“ It,”  the  taxing  power,  “ is  therefore  one  of  the  sovereign  powers 
vested  in  the  States  by  their  constitutions,  which  remained  unal- 
tered and  unimpaired,  and  in  respect  to  which  the  State  is  as  inde- 
pendent of  the  general  government,  as  that  government  is  inde- 
pendent of  the  States.  The  supremacy  of  the  general  government, 
therefore,  so  much  relied  on  in  the  argument  of  the  counsel  for  the 
plaintiff  in  error,  in  respect  to  the  question  before  us,  cannot  be 
maintained.  The  two  governments  are  upon  an  equality,”  &c., 
(p.  126).  And  again:  “In  this  respect,  that  is,  in  respect  to  the 
reserved  powers,  the  State  is  as  sovereign  and  independent  as  the 
general  government  ” (p.  127).  The  case  itself  is  the  strongest 
possible  example  of  an  implied  limitation  upon  the  powers  of  Con- 
gress. Its  power  to  tax  is  apparently  unlimited,  and  it  had  passed 
an  act,  by  the  terms  of  which  the  salary  of  a State  judge  was  liable 
to  taxation,  but  this  court  pronounced  the  act  unconstitutional,  be- 
cause, in  the  exercise  of  an  express  power.  Congress  had  trans- 
gressed the  implied  limitations.  Other  instances  of  implied  limita- 
tions will  readily  suggest  themselves;  federal  judges  declining 
duties  not  judicial,  imposed  on  them  by  Congress,  and  State  officers 
declining  federal  duties. 


* Collector  v.  Day,  ii  Wall.  124 


* Texas  v.  White,  7 Wall.  725. 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  531 


9.  The  legislation  to  enforce  the  amendments  invalid. 

The  only  principle  that  can  justify  the  legislation  now  in  ques- 
tion, if  it  be  justifiable  at  all,  is  this:  That,  in  the  choice  of  means 
to  prevent  a State  violating  the  prohibitory  clauses  of  the  late 
amendments.  Congress  may  itself  do  the  things  which  the  State 
would  otherwise  have  done,  in  order  to  make  sure  that  they  are  not 
done  improperly.  The  States  may,  every  one  of  them,  do  what 
New  York  and  Massachusetts  now  do,  in  securing  the  right  of  all 
citizens  to  vote,  without  regard  to  race,  color,  or  previous  condi- 
tion of  servitude;  but,  for  fear  that  they  will  not  continue  to  do  so. 
Congress  may,  it  is  claimed,  register  the  voters,  and  receive  and 
count  the  votes.  And  if  it  may  do  that,  it  may  do  any  other  thing 
that  is  to  be  done  by  a government  in  an  election;  in  short,  take 
upon  itself  to  construct  and  work  the  whole  machinery  of  elections. 
And  what  is  true  of  voting,  is,  as  I shall  endeavor  to  show  more 
fully  hereafter,  true  also  of  every  other  subject  within  the  scope  of 
these  amendments,  and  that  includes  almost  every  subject  of  gov- 
ernment. For  what  is  there  in  the  world  for  State  legislation  but 
“life,  liberty  and  property,”  and  the  “protection  of  the  laws  ?”  If 
the  validity  of  the  present  legislation  is  affirmed,  one  may  affirm  the 
validity  of  legislation  upon  any  subject  concerning  life,  liberty, 
property,  and  protection  by  the  law. 

10.  The  tendency  towards  the  centralization  of  power. 

It  is  idle  to  answer  that  such  an  attempt  will  never  be  made. 
Who  can  tell  what,  in  the  frenzy  of  future  parties,  may  not  be  at- 
tempted ? Who  that  has  seen  the  things  happening  in  this  genera- 
tion, can  foretell  what  may  not  be  done  or  attempted  in  some  of 
the  times  to  come  ? One  of  the  most  extraordinary  phenomena  of 
political  history,  is  the  tendency  of  majorities  to  oppress  minorities, 
and  to  trample  upon  all  obstructions  standing  in  the  way.  It  would 
have  been  thought  probable,  that  as  each  person  who  helps  to  make 
the  majority  is  himself  but  an  individual,  and  may  soon  be  in  the 
minority  of  individuals,  he  would  be  sedulous  to  guard  his  own 
rights,  by  refusing  to  join  in  pressing  too  heavily  upon  the  rights  of 
others.  But  the  fact  is  different,  though  every  federal  legislator, 
and  every  other  federal  officer  does  in  truth  depend  for  his  own 
protection  and  that  of  his  family,  more  upon  the  State  to  which  he 
belongs,  than  upon  the  federal  government  which  he  for  the  time  be- 
ing serves.  Yet  this  truth  is  lost  sight  of  in  the  thoughtlessness  and 


532  ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


excitement  of  national  discussions.  Whoever  has  carefully  watched 
the  political  events  of  the  last  decade  must  have  seen  a constant 
and  constantly  accelerated  movement  toward  the  organization  and 
cumulation  of  federal  authority.  This  has  been  brought  about  by 
the  action  of  good  men  as  well  as  bad,  in  obliviousness  of  the  truth 
that  every  new  power  added  to  the  nation,  is  just  so  much  sub- 
tracted from  the  States. 

II.  Rule  of  interpretation  as  to  the  new  amendments. 

A political  argument  addressed  to  the  Supreme  Court  would,  of 
course,  be  out  of  place.  Its  great  but  single  function  is  to  inter- 
pret the  law  and  the  Constitution,  be  the  consequences  what  they 
may.  But  it  is  proper  to  reflect,  that  for  the  true  interpretation  of 
language,  we  may,  and  should  look  at  the  occasion  and  circum- 
stances in  which  it  was  used.  This  is  both  natural  and  philosoph- 
ical. The  imperfection  of  language  leaves  room  for  different  inter- 
pretations, in  the  choice  of  which  we  put  ourselves,  so  far  as  may 
be,  in  the  place  of  those  who  used  it.  see  with  their  eyes,  hear  with 
their  ears,  and  imagine  ourselves  to  be  aiming  at  that  at  which  they 
aimed.  We  know  the  history  of  the  federal  Constitution;  and  we 
know  also  the  history  of  the  late  amendments.  The  matter  is  too 
fresh  for  us  to  be  ignorant  of  the  views  and  intentions  of  those  who 
ratified  their  provisions.  We  may  appeal  to  the  knowledge  of  men 
around  us,  to  our  fellow-citizens  of  the  whole  nation,  to  bear  us  out 
in  the  assertion,  that  the  people  did  not  suppose  they  were  thereby 
changing  the  fundamental  theory  of  their  government.  If  this  be 
assumed,  and  it  be  shown,  that  the  legislation  in  question  goes  upon 
a new  theory  of  the  government,  and  of  the  relation  of  the  States 
to  the  Union,  then  it  is  shown  that  the  people  never  contemplated, 
and  much  less  sanctioned,  such  an  interpretation  of  their  acts. 
Should  this  be  done,  then,  in  a case  where  language  is  susceptible 
of  two  interpretations,  that  one  is  to  be  preferred  as  the  true  one 
which  conforms  to  the  understanding  of  the  people,  whose  acts 
alone  these  amendments  are. 

12.  Two  PROPOSITIONS  WHICH  EMBRACE  THE  THEORY  OF  THE 

DEFENSE. 

My  argument,  therefore,  will  consist  of  an  endeavor  to  establish 
the  following  two  propositions: 

I.  The  natural  interpretation  of  the  language  of  the  new  amend- 
ments does  not  justify  the  present  legislation; 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  533 

II.  If  the  natural  interpretation  did  justify  it,  yet,  as  the  lan- 
guage is  susceptible  of  a different  one,  the  latter  must  be  preferred 
as  that  alone  in  which  it  was  understood  by  the  people. 

The  natural  interpretation  of  the  amendments  does  not  justify 
the  legislation.  No  State,  this  is  the  language,  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States,  or  deprive  any  person  of  life,  liberty  or  prop- 
erty, without  due  process  of  law,  or  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws;  no  State  shall  deny  or 
abridge  the  right  of  citizens  of  the  United  States  to  vote,  without 
regard  to  race,  color,  or  previous  condition  of  servitude.  A State 
is  a corporate  body,  and  can  act  only  by  its  corporate  authorities. 
Until  these  corporate  authorities  have  acted,  the  State  has  not  vio- 
lated the  prohibition.  Congress  therefore  must  move  after  the 
State,  not  before  it.  But  as  yet  no  State  has  moved,  so  far  as  we 
are  informed.  Not  one  of  them  has  done  anything  which  a State 
is,  by  these  amendments,  commanded  not  to  do. 

13.  Congress  has  no  right  to  anticipate  the  action  of  a 

State. 

The  prohibitions  being  against  State  action,  that  action  must 
precede  any  counter  action  under  act  of  Congress.  This  is  so  ob- 
vious, as  to  amount  almost  to  a truism.  Even  if  Congress  should 
be  supposed  competent  to  legislate  in  anticipation  of  State  action, 
nothing  could  be  done  under  the  act  of  Congress  until  something 
had  been  done  under  the  act  of  the  State,  contrary  to  the  prohibi- 
tion. 

It  follows  from  the  last  proposition,  as  well  as  from  other  con- 
siderations, that  in  respect  to  the  mere  prohibitions  upon  the  States 
no  action  under  a law  of  Congress  can  be  had  for  the  mere  inaction 
of  a State.  If,  for  example,  a State  should  wholly  fail  to  provide 
for  certain  rights  of  property.  Congress  would  not  thereby  become 
authorized  to  pass  laws  for  the  protection  of  such  rights.  There 
are  many  rights  which  courts  acting  only  according  to  the  common 
law  cannot  adequately  protect.  Massachusetts  and  Pennsylvania 
were  formerly  without  equitable  remedies.  If  they  were  so  now,  no 
sane  man  would  pretend  that  therefore  Congress  would  be  author- 
ized to  establish  such  remedies  for  them.  So,  too,  in  respect  to 
certain  new  rights  of  property,  as,  for  instance,  those  which  arise 
out  of  telegraphy,  should  a State  or  all  the  States  fail  to  define  and 
protect  them.  Congress  could  not  do  so. 


534 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


14.  Failure  to  provide  a remedy  not  equivalent  to  the 

DEPRIVATION  OF  A RIGHT. 

Failure  to  provide  a remedy  for  a wrong  is  not  the  same  thing 
as  depriving  of  a right.  If  it  were  so,  then  Congress  might  examine 
the  codes  of  the  States,  and,  if  it  found  their  provisions  inadequate, 
might  supplement  them.  Were  a State  to  repeal  a part  of  its  laws 
for  the  protection  of  rights  or  the  punishment  of  crimes,  the  na- 
tional government  could  not  supply  the  deficiency.  Thus,  if  New 
York  were  to  repeal  all  laws  for  the  collection  of  debts.  Congress 
could  not  re-enact  them.  If  Massachusetts  were  to  provide  no 
punishment  for  conspiracy  or  embezzlement.  Congress  could  not 
provide  it. 

It  could  hardly  be  claimed  that  these  prohibitions  require  any 
more  of  the  State  legislatures  than  would  have  been  required  of 
them  if  the  same  had  been  contained  in  their  own  constitutions. 
Then  surely  their  doing  no  more  and  no  less  cannot  give  just  occa- 
sion for  federal  interposition.  State  inaction  therefore  is  no  cause 
for  federal  action.  There  must  be  affirmative  action  by  a State 
tending  to  deprive  a citizen  of  his  rights  before  Congress  can  inter- 
fere. Should  a State  legislature  attempt  to  deprive  a person  of 
property  without  due  process  of  law,  its  action  would  be  a nullity. 
What,  in  that  event,  might  Congress  do  ? Provide  legal  means  for 
establishing  the  nullity.  What  legal  means  did  Congress,  long  ago, 
provide  for  establishing  the  nullity  of  an  ex  post  facto  law,  or  a law 
impairing  the  obligation  of  contracts,  or  a bill  of  attainder  ? An 
appeal  to  the  federal  courts.  Has  not  that  proved  adequate  ? The 
whole  question  may  be  stated  in  these  words:  How  may  Congress 
enforce  the  nullity  of  a State  law. 

15.  A PROHIBITION  OF  THE  EXERCISE  OF  POWER,  DOES  NOT  CON- 

FER UPON  Congress  the  power  prohibited. 

Guarantee  is  not  the  converse  of  prohibition.  The  prohibitions 
do  not  amount  to  guarantees.  They  do  not  require  the  States  to 
make  sure  that  no  man  shall  be  deprived  of  life,  liberty  or  property 
without  law.  The  prohibitory  amendments  act  upon  the  States  and 
not  upon  individuals.  Because  the  States  are  interdicted  from  cer- 
tain things,  and  Congress  may  enforce  the  interdict,  that  does  not 
prove  that  Congress  may  do  the  converse  things.  Because  the 
States  are  prohibited,  it  would  be  a strange  inference  that  Congress 
is  authorized.  When  the  Constitution  says  to  the  States,  you  shall 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.” 

not,  that  is  not  the  same  thing  as  saying  to  Congress,  you  shall  or 
you  may.  If  it  were  so,  there  would  be  found  a strange  omission 
in  the  Constitution,  wide  enough  to  let  in  many  of  the  mischiefs 
which  the  prohibitions  were  intended  to  remedy.  Congress  is  not 
by  these  amendments  prohibited;  it  is  only  the  States  which  are. 
If  in  consequence  of  the  prohibition  upon  the  States,  Congress  can 
exercise  plenary  power  over  the  subject,  it  can  do  some,  indeed 
many,  of  the  very  things,  which  the  States  were  forbidden  to  do. 
Congress  is  not  forbidden  to  pass  a law  abridging  the  privileges 
and  immunities  of  citizens,  or  denying  to  certain  persons  the  equal 
protection  of  the  laws. 

i6.  Mode  in  which  Congress  may  legally  enforce  prohi- 
bitions UPON  THE  States. 

But  suppose  a State,  not  content  with  its  present  laws,  to  be 
about  to  act  aggressively,  and  thus  to  violate  the  prohibition,  we 
may  speculate  upon  what  Congress  could,  in  that  event,  enact.  The 
means  adopted  must  be  appropriate,  and  not  prohibited.  The  fed- 
eral legislature  can  act  only  by  statute,  to  be  put  in  execution  by 
the  executive  and  the  courts.  Could  Congress  authorize  the  exec- 
utive to  do  anything  against  the  recalcitrant  State  ? It  is  difficult 
to  see  what  it  could  empower  the  President  to  do.  It  must  act 
through  the  courts.  And  the  only  question  is,  what  appropriate 
action  could  Congress  authorize  to  be  taken  in  the  courts  to  enforce 
the  prohibition,  that  is,  to  prevent  or  redress  the  violation.  Could 
it  indict  and  punish  the  individuals  who  had  taken  advantage  of  the 
State’s  violation  of  the  prohibition,  or  take  action  against  the  State 
authorities,  or  nullify  the  acts,  which  the  State  ordains  or  permits  ? 
Direct  action  against  the  State  authorities  is  out  of  the  question  for 
reasons  hereinbefore  and  hereafter  stated.  For  Congress  to  punish 
individuals  for  violations  of  State  laws  is  also  out  of  the  question. 
To  punish  them  for  obeying  the  State  laws  would  always  be  of 
doubtful  expediency,  as  leading  to  unnecessary  conflict,  and  would 
often  be  unconstitutional.  The  third  remedy  is  the  true  if  not  the 
only  one,  to  nullify  the  action  which  the  State  should  not  have  or- 
dained or  permitted. 

We  have  lived  now  three-quarters  of  a century  under  the  Con- 
stitution, and  it  has  not  been  thought  necessary  to  apply  to  Con- 
gress for  the  punishment  of  a conspiracy  to  impair  the  obligation 
of  a contract,  or  to  pass  an  ex  post  facto  law,  or  a bill  of  attainder. 


536  ARGUMEiNT  OF  DAVID  DUDLEY  FIELD  ON  THE 


No  one  seems  to  have  thought  that  Congress  was  competent  to 
punish  such  a conspiracy,  or  that  there  was  any  occasion  for  such 
legislation,  if  it  were  possible. 

17.  Constitutional  mode  of  enforcing  the  amendments. 

Equality  before  the  law  is  the  general  aim  of  the  amendments. 
That  is  secured  by  nullifying  inequality,  that  is,  for  example,  by  de- 
claring that  whatever  the  State  grants  to  its  white  citizens,  shall  for 
that  reason  be  also  the  right  of  the  black.  This  rule  would  execute 
itself  in  most  cases.  Take  that  clause  of  the  fourteenth  amend- 
ment, which  forbids  a State  to  make  or  enforce  a law  abridging  the 
privileges  and  immunities  of  citizens  of  the  United  States.  The 
State  cannot  enforce  a law  until  it  is  made;  if,  therefore,  it  makes 
no  such  law,  the  condition  on  which  alone  Congress  can  act  has  not 
arrived.  When  the  State  has  made  such  a law  then  Congress  can 
take  steps  to  enforce  the  prohibition.  What  may  they  be  ? Not 
the  passing  of  an  Act  to  declare  the  State  law  null;  that  has  already 
been  done  by  a power  higher  than  act  of  Congress — that  is,  the 
Constitution  itself — not  by  empowering  the  President  to  act,  for  he 
cannot  use  force  against  the  State  statute,  but  by  protecting  the  in- 
dividual aggrieved  from  the  operation  of  the  obnoxious  law.  How 
is  that  to  be  done  ? Just  as  Congress  has  hitherto  protected  an  in- 
dividual aggrieved  against  an  ex  post  facto  law,  or  a law  impairing 
the  obligation  of  contracts.  It  is  not  necessary  to  go  into  details. 
Various  legal  processes  will  readily  suggest  themselves  to  a lawyer, 
the  effect  of  which  will  be  to  protect  the  person  from  any  law  aim- 
ing to  abridge  his  privileges  or  immunities  as  a citizen  of  the  United 
States,  whatever  they  may  be. 

Take  the  next  clause,  that  which  forbids  a State  to  deprive  any 
person  of  life,  liberty  or  property,  without  due  process  of  law. 
Upon  this  the  same  observations  may  be  made.  It  is  difficult  to 
imagine  any  proceeding  of  a State  to  deprive  a person  of  life,  lib- 
erty or  property,  which  may  not  be  effectually  reached  by  the  means 
suggested.  One  of  the  most  powerful  instruments  for  depriving  a 
person  of  life,  liberty  or  property,  is  a bill  of  attainder,  or  a bill  of 
pains  and  penalties.  This  is  prohibited  by  the  original  Constitu- 
tion. Is  not  that  prohibition  adequately  enforced  by  existing  acts 
of  Congress,  allowing  an  appeal  to  the  federal  judiciary  ? 

Then  take  the  third  clause,  that  which  forbids  a State  to  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.  Cannot  this  be  dealt  with  in  the  same  way  ? A denial  in 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  53 T 


words  only,  though  in  the  form  of  a State  statute,  would  be  harm- 
less. If  the  denial  is  followed  by  acts,  the  person  aggrieved  can 
be  defended  against  them  by  the  same  machinery  of  the  courts, 
which  would  be  sufficient  for  his  defense  against  a violation  of 
either  of  the  preceding  clauses.  Indeed,  the  mode  of  dealing  with 
the  prohibition  against  bills  of  attainder  is  marked  out  as  the  true 
mode  of  dealing  with  the  other  prohibitions.  No  act  of  a State 
could  be  more  violent  and  aggressive  than  a bill  of  attainder,  and 
if  the  machinery  of  the  twenty-fifth  section  of  the  Judiciary  Act  has 
hitherto  been  sufficient  to  defend  the  citizen  against  that,  it  surely 
will  be  sufficient  to  protect  him  against  whatever  is  less  violent  and 
aggressive. 

Will  it  be  said,  that  life,  liberty  and  property  cannot  be  pro- 
tected without  law;  that  the  equal  protection  of  the  laws  presup- 
poses the  existence  and  enforcement  of  laws,  and  that  if  the  States 
do  not  make  the  laws,  or,  being  made,  do  not  enforce  them,  then 
Congress  may  interfere  ? I have  already  said  something  on  this 
head,  and  will  add  only  a few  words. 

Let  the  question  be  put  in  this  form:  Suppose  a State  not  to 
provide  adequate  remedies  for  the  protection  of  life,  liberty  and 
property,  what  may  Congress  do  ? The  answer  must  be.  Congress 
may  do  nothing  whatever,  beyond  providing  judicial  remedies  in 
federal  courts  for  parties  aggrieved  by  deprivation  of  their  rights. 
Beyond  this  there  is  no  alternative  between  doing  nothing  or  doing 
everything,  between  leaving  the  States  alone  or  destroying  them  al- 
together. Congress  cannot  do  everything,  because  that  would  be 
the  annihilation  of  the  States;  therefore  it  can  do  nothing,  beyond 
providing  the  judicial  remedies  here  indicated. 

For  want  of  a better  expression,  I will  call  affirmative  legislation 
that  which  declares  and  enforces  substantive  law;  and  by  negative 
legislation,  that  which  operates  by  way  of  defense,  in  giving  redress 
to  a party  aggrieved.  Using  the  expression  in  this  sense,  I should 
say  that  affirmative  legislation  in  respect  to  the  prohibitions  of  the 
14th  amendment,  is  not  within  the  competency  of  Congress.  I see 
no  middle  ground  between  giving  Congress  plenary  power  over  the 
subject  of  these  fundamental  rights,  and  giving  it  none.  If  a State 
were  to  abrogate  its  whole  civil  and  penal  code,  can  Congress  make 
one  for  it?  By  neglect  of  the  government  of  New  York,  we  will 
suppose  A.  to  be  deprived  of  his  property,  without  due  process  of 
law.  His  remedy  is  to  sue  in  the  State  courts.  If  that  remedy  is 
denied  he  can  go  into  the  federal  courts  by  appeal.  Should  the 


538 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


present  process  of  appeal  prove  too  dilatory  or  cumbrous,  Congress 
can  afford  an  adequate  remedy,  by  providing  a simpler  and  speed- 
ier appeal. 

Then  let  us  consider  the  prohibition  of  the  15th  amendment. 
‘‘The  right  of  citizens  of  the  United  States  to  vote,  shall  not  be 
denied  or  abridged  by  * * * any  State,  on  account  of  race, 

color  or  previous  condition  of  servitude,"  and  Congress  may  enforce 
the  provisions  of  this  article.  It  might  seem  at  first  sight,  that  here 
is  a declaration  of  the  right  of  citizens  of  the  United  States  to  vote, 
but  that  would  be  an  error.  No  right  is  guaranteed  or  asserted. 
Discrimination  only  is  prohibited.  The  right  or  privilege,  which- 
ever it  may  justly  be  called,  of  the  elective  franchise  is  still  where 
it  has  always  been,  under  State  control,  with  this  single  qualifica- 
tion, that  in  determining  it,  the  State  shall  make  no  distinction  on 
account  of  race,  color  or  previous  servitude. 

This  amendment  is  nothing  but  a prohibition,  like  the  first  sec- 
tion of  the  14th  article,  and  should  be  dealt  with  in  the  same  man- 
ner. But  the  right  or  privilege  of  voting  cannot  be  exercised  with- 
out affirmative  legislation,  it  may  be  said.  No  more  can  the  right 
to  property  be  exercised  without  affirmative  legislation.  Because  a 
judge  of  election  refuses  my  right  to  vote,  is  that  a reason  why  he 
should  be  indicted  in  the  federal  courts  any  more  than  the  judge 
of  a police  court,  who  refuses  my  claim  for  redress  against  a rufiian 
who  has  assaulted  me  in  the  street  ? Because  individuals,  bad  men, 
band  together  to  deprive  me  of  my  redress  from  the  police  magis- 
trate, is  that  a constitutional  reason  why  the  federal  judiciary  should 
be  called  upon  to  indict,  try  and  punish  them  ? As  individuals 
they  have  violated  the  State  laws,  and  the  State  must  take  them  in 
hand;  if  the  State  will  not,  the  inhabitants  of  the  State  are  the  suf- 
ferers, and  in  their  hands  lies  the  power  of  redress;  let  them  not 
call  on  Congress  to  help  those  who  can  help  themselves. 

It  must  never  be  forgotten  that  the  judges  and  other  officers  of 
all  the  States,  are  sworn  to  support  the  Constitution.  The  cases 
have  hitherto  proved  rare  in  which  they  failed  justly  to  interpret, 
and  firmly  to  enforce  the  provisions  of  the  Federal  Constitution, 
and  there  is  no  reason  to  suppose  that  they  will  be  less  faithful 
hereafter.  There  should  seem,  therefore,  to  be  no  occasion  for  at- 
tempting to  bend  the  Constitution  till  it  snaps  asunder. 

My  proposition,  in  short,  is  this:  That  an  act  of  a State  in  vio- 
lation of  the  prohibitions  of  the  amendments  would  be  a nullity, 
and  that  Congress,  being  authorized  to  enforce  the  prohibitions  by 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  539 


appropriate  legislation,  the  natural,  the  true,  and  the  only  constitu- 
tional mode  of  entorceinent,  is  by  judicial  remedies  to  establish  and 
enforce  the  nullity. 

18.  How  State  laws  may  be  prevented  from  becoming 

OPERATIVE. 

The  prohibitions  of  the  three  amendments  present  in  effect  a 
body  of  law  complete  in  itself,  comprehensive  like  a law  of  the 
twelve  tables,  and  being  the  only  substantive  law,  in  that  respect, 
required  or  permitted  on  the  part  of  the  United  States.  All  that 
Congress  has  to  do,  by  way  of^  legislation,  is  to  provide  the  means 
for  the  courts  to  enforce  the  nullity  of  the  prohibited  acts,  if  any 
such  are  passed  by  the  States;  in  other  words,  to  prevent  their  tak- 
ing effect.  That  legislation  Congress  has,  in  a great  part,  supplied, 
by  the  act  just  passed,  April  3,  1875,  by  which  a few  words  have 
been  inserted  in  the  body  of  that  section  of  the  judiciary  act  of 
1789,  which  conferred  jurisdiction  upon  the  Circuit  Courts,  and 
giving  them  hereafter  cognizance  of  suits  of  a civil  nature  “ arising 
under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made  or  which  shall  be  made  under  their  authority.”  The  ques- 
tions arising  under  the  prohibitions  of  these  amendments  are,  like 
the  questions  arising  under  the  prohibitions  of  the  original  Consti- 
tution, judicial  in  their  character.  Congress  is  not  competent  to 
decide  them,  any  more  than  it  is  competent  to  decide  what  are  ex 
post  facto  laws,  or  what  laws  impair  the  obligations  of  contracts,  or 
what  are  bills  of  attainder. 

19.  The  legislation  assumes  that  Congress  has  powers 

WHICH  IT  DOES  NOT  POSSESS. 

The  6th  section  of  the  Enforcement  Act  assumes  that  Congress 
has  power  to  punish  a conspiracy  to  deprive  any  citizen  of  the 
United  States  of  his  right  to  vote;  of  any  right  granted  or  secured 
by  the  federal  Constitution;  of  any  privilege  or  immunity  of  a citi- 
zen of  the  United  States;  of  the  right  to  life,  liberty  and  property, 
and  of  the  right  to  the  equal  protection  of  the  laws. 

Let  us  take  one  of  these,  and  direct  our  attention  to  that;  for 
example,  the  right  of  property.  The  prohibition  of  the  14th  amend- 
ment commands  a State  not  to  deprive  any  person  of  property 
without  due  process  of  law.  The  State  may  deprive  a person  of 
his  property  by  due  process  of  law,  but  not  without  it.  To  deprive 
without  due  process  is  to  proceed,  without  law,  by  arbitrary  acts  of 


540 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


legislation,  miscalled  law.  The  State  can  act  only  by  its  corporate 
officers,  and  then  only  in  pursuance  of  State  legislation.  If  a State 
governor  despoils  a citizen,  he  is  a simple  trespasser,  unless  there 
be  a State  law  to  justify  him.  We  will  suppose  then  a State  law 
prohibited  by  this  amendment,  which  law  authorizes  a certain  thing 
to  be  done;  it  is  the  doing  of  this  thing  which  Congress  may  nul- 
lify. Suppose  an  act  declaring  that  A.  shall  have  a farm  belonging 
to  B.  This  would  be  simply  void.  If  not  so  declared  by  the  State 
courts,  the  federal  courts,  on  appeal,  would  reverse  their  decision. 
That  would  be  all  that  need  be  done.  Suppose  that  certain  tenants 
in  New  York  conspire  to  deprive,  by  force,  a citizen  of  that  State 
of  his  rights  as  landlord.  That  is  a’ conspiracy  to  deprive  a person 
of  his  property  without  due  process  of  law.  May  Congress  enact 
a general  law  for  the  punishment  of  the  conspirators  by  a court  of 
the  United  States  ? 

We  must  discriminate  among  the  prohibitions,  between  those 
which  aim  merely  at  equality,  and  those  which  aim  at  other  rights. 
The  provision  about  the  right  to  vote,  without  disparagement  aris- 
ing from  race,  confers  no  right  of  voting;  but  simply  provides,  that 
if  the  right  be  given  to  whites  it  shall  be  given  to  blacks  also. 
Had  a similar  expression  been  used  in  respect  to  the  right  to  hold 
office,  it  surely  would  not  have  been  said  that  a right  to  an  office 
was  conferred.  So,  if  the  right  to  education  had  been  mentioned  in 
the  same  terms,  that  would  not  have  been  construed  to  confer  the 
right  to  be  educated. 

Upon  the  whole,  it  is  submitted  that  the  amendments,  taken  in 
theix*  natural  sense,  do  not  justify  the  legislation  now  under  review. 

20.  Second  proposition. — Theory  and  object  of  government. 

We  come  now  to  the  second  proposition,  which  is,  that  if  the  in- 
terpretation contended  for  were  not  the  more  natural  one,  yet  it  is 
at  the  very  least  a possible  interpretation,  and  is  to  be  preferred, 
because  it  is  the  only  one  conformable  to  the  understanding  and 
purpose  of  the  people,  by  whom  the  text  was  adopted. 

The  general  doctrine  up  to  the  time  of  these  amendments  con- 
tinued to  be,  that  the  States  were  sovereign  over  their  own  State 
concerns.  This  complex  government  was  curiously  contrived  to 
give  liberty  and  safety  to  the  people  of  all  the  States.  It  was  fash- 
ioned by  the  people,  in  the  name  of  the  people,  and  for  the  people. 
Its  aim  was  to  keep  the  peace  among  the  States,  and  to  manage  af- 
fairs of  common  concern,  while  it  left  the  States  the  entire  manage- 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  541 


ment  of  their  own  affairs.  Its  founders  were  wise  and  practical 
men.  They  knew  what  history  had  taught  from  the  beginning  of 
Greek  civilization,  that  a number  of  small  republics  would  perish 
without  federation,  and  that  federation  would  destroy  the  small 're- 
publics without  such  a barrier  as  it  would  be  impossible  to  pass. 
Liberty  and  safety  were  the  ends  to  be  won  by  the  double  and  com- 
plex organization;  liberty  from  the  States  and  safety  from  the 
Union,  and  the  founders  thought  that  they  had  contrived  a scheme 
which  would  make  the  States  and  the  Union  essential  parts  of  a 
great  whole;  that  they  had  set  bounds  to  each,  which  they  could 
not  pass;  in  short,  that  they  had  founded  “liberty  and  union,  one 
and  inseparable.” 

No  man  in  his  senses  could  have  supposed,  at  the  formation  of 
the  Constitution,  or  can  now  suppose,  that  a consolidated  govern- 
ment, extending  over  so  much  territory  and  so  many  people,  can 
last  a generation,  without  the  destruction  of  the  States  and  of  re- 
publican government  with  them.  History  is  a fable,  and  political 
philosophy  a delusion,  if  any  government  other  than  monarchial 
can  stretch  itself  over  fifty  degrees  of  longitude  and  half  as  many 
of  latitude  with  fifty  millions  of  people,  where  there  are  no  local 
governments  capable  of  standing  by  themselves  and  resisting  all  at- 
tempts to  imperil  their  self-existence  or  impair  their  authority.  The 
moment  it  is  conceded  that  Washington  may,  at  its  discretion,  reg- 
ulate all  the  concerns  of  New  York  and  California,  of  Louisiana 
and  Maine  ; that  the  autonomy  of  the  States  has  no  defense 
stronger  than  the  self-denial  of  fluctuating  congressional  majori- 
ties ; at  that  moment  the  republic  of  our  fathers  will  have  disap- 
peared, and  a republic  in  name,  but  a despotism  in  fact,  will  have 
taken  its  place,  to  give  way  in  another  generation  to  a government 
with  another  name,  and  other  attributes. 

Observe  how  far  on  that  road  the  maintenance  of  the  present  leg- 
islation will  carry  us.  It  has  already  led  to  the  cases  of  Kellogg  and 
Warmouth,  the  United  States  and  Clayton,  and  Harrison  and  Hadley, 
and  these  cases  are  but  a foretaste  of  what  we  may  have  hereafter.  Its 
essential  principle  is,  that  in  order  to  anticipate  and  prevent  a vio- 
lation of  the  prohibitions.  Congress  may  establish  a system  of  law  for 
the  general  regulation  of  all  subjects  within  the  scope  of  the  amend- 
ments. The  logical  and  inevitable  conclusions  from  this  new 
theory  are,  that  the  prohibition  against  denying  or  abridging  the 
right  to  vote  on  account  of  color,  race,  or  previous  condition  of 
servitude,  may  be  enforced  by  framing  and  working  the  machinery 


542 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


of  elections,  no  matter  what  may  be  the  office  or  the  function  to  be 
filled  by  the  electors.  The  prohibition  against  making  or  enforcing 
any  law  abridging  the  privileges  or  immunities  of  citizens  of  the 
United  States  may  be  enforced  by  framing  a code  of  these  priv- 
ileges and  immunities,  defining  the  methods  of  enjoyment,  and  pro- 
viding penalties  for  their  violation.  And  the  still  more  comprehen- 
sive prohibitions  against  depriving  any  person  of  life,  liberty  or 
property  without  due  process  of  law,  or  denying  to  any  person  the 
equal  protection  of  the  laws,  may  be  enforced  by  a more  compre- 
hensive code,  defining  the  rights  of  life,  liberty  and  property,  in  all 
their  ramifications,  the  processes  of  law  which  are  to  be  deemed 
due,  that  protection  of  the  laws  which  is  to  be  considered  equal, 
and  the  various  modes  of  enforcing  the  rights  of  life,  liberty  and 
property  by  remedies  civil  and  criminal.  If  these  numerous  and 
multiform  provisions  would  not  cover  the  whole  ground  of  law,  sub- 
stantive and  remedial,  it  is  not  easy  to  see  what  would  be  omitted 
that  is  contained  in  the  most  comprehensive  existing  code.  The 
legislation  of  Congress  would,  of  course,  supersede  or  exclude  leg- 
islation by  the  States  upon  the  same  subjects ; the  United  States 
would  stand  as  the  universal  lawgivers  of  the  country,  and  the  laws 
of  the  States  would  dwindle  to  the  dimensions  of  corporation  ordi- 
nances or  the  regulations  of  county  supervisors. 

21.  Practical  results  of  the  theory  of  the  prosecution. 

The  argument  appears  to  be  unanswerable,  that  such  was  not 
and  could  not  have  been  the  intention  of  the  American  people,  in 
sanctioning  these  amendments,  and  therefore  they  should  not  be 
thus  interpreted,  even  if  the  natural  significance  of  their  language 
were,  as  it  is  not,  favorable  to  such  an  interpretation. 

To  suppose  the  contrary,  is  to  suppose  that  the  people  of  this 
country  have  forgotten  all  their  history  and  all  their  traditions,  and 
have  come  to  regard  as  evil  that  which  their  fathers  accounted 
good,  and  good  evil.  If  Washington,  when  he  left  the  chair  of  the 
convention  and  signed  his  great  name  to  the  draft  of  the  Constitu- 
tion as  president  and  deputy  from  Virginia;  if  Franklin,  when  he 
uttered  there  his  last  words,  and  looking  at  a picture  of  the  sun  in 
the  horizon,  said  he  had  been  in  doubt  whether  it  was  rising  or  set- 
ting, but  then,  as  they  had  so  auspiciously  concluded  their  labors, 
he  knew  it  was  the  rising  sun  ; if  those  patriot  fathers  had  been 
told  that  the  time  would  ever  come,  when  the  proud  common- 
wealths which  they  represented  would  be  accounted  the  vassals  of 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT”  5tt3 


that  Union  which  they  were  so  sedulous  to  create  and  so  stren- 
uous to  defend,  they  would  have  turned  upon  the  utterers  of  such 
prophesies,  as  fomentors  of  discord  and  enemies  of  the  States, 

22.  Rules  of  interpretation  heretofore  adopted. 

If  confirmation  of  these  views  of  the  Constitution  were  needed, 
it  would  be  found  in  the  interpretation,  legislative,  executive  and 
judicial,  heretofore  at  all  times  given.  We  find  that,  with  few  ex- 
ceptions, the  current  is  all  one  way.  The  original  instrument  con- 
tained prohibitions,  that  “ no  State  shall  enter  into  any  treaty,  al- 
liance or  confederation  ; grant  letters  of  marque  and  reprisal ; coin 
money ; emit  bills  of  credit ; make  any  thing  but  gold  and  silver 
coin  a tender  in  payment  of  debts  ; pass  any  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant 
any  title  of  nobility.”  These  prohibitions  have  subsisted  now  for 
nearly  ninety  years,  but  Congress  has  never  attempted  to  enforce 
them,  except  by  the  25th  section  of  the  Judiciary  Act  of  1789, 
which  gave  an  appeal  to  the  Supreme  Court  from  the  State  courts, 
upon  federal  questions,  and  this  action  of  Congress  has  proved  all 
sufficient. 

As  to  the  executive  department,  although  it  is  made  the  duty  of 
the  President  to  recommend  to  the  consideration  of  Congress  ‘‘  such 
measures  as  he  shall  judge  necessary  and  expedient,”  there  has 
never  been,  so  far  as  I am  aware,  any  executive  recommendation  of 
further  legislation  to  enforce  these  prohibitions.  As  to  the  judicial 
department,  we  have  a concurrence  and  weight  of  authority,  that 
leaves  no  room  for  doubt  as  to  its  views  of  the  power  of  Congress. 

Though  this  court,  in  every  period  of  its  history,  has  had  occa- 
sion to  interpret  the  Constitution,  and  to  declare  the  rules  by  which 
it  is  to  be  interpreted,  we  have  little  occasion  to  go  further  back 
than  the  last  two  years,  for  an  exposition  of  those  rules,  and  their 
effect,  especially  upon  the  last  three  amendments.  In  the  Slaughter- 
House  cases,  the  court  declared,  that  any  question  of  doubt  con- 
cerning the  true  meaning  of  the  amendments  cannot  be  safely  and 
rationally  solved,  without  a reference  to  the  history  of  the  times, 
and  that 

“ In  any  fair  and  just  construction  of  any  section  or  phrase 
of  these  amendments,  it  is  necessary  to  look  to  the  purpose 
which  * * * was  the  prevailing  spirit  of  them  all,  the  evil, 

which  they  were  designed  to  remedy,  and  the  process  of  continued 
addition  to  the  Constitution,  until  that  purpose  was  supposed  to  be 
accomplished,  as  far  as  constitutional  law  can  accomplish  it. 


544  ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


It  would  be  the  vainest  show  of  learning  to  attempt  to  prove, 
by  citations  of  authority,  that  up  to  the  adoption  of  the  recent 
amendments  no  claim  or  pretense  was  set  up  that  those  rights  de- 
pended on  the  federal  government  for  their  existence  or  protection, 
beyond  the  very  few  express  limitations  which  the  federal  Constitu- 
tion imposed  upon  the  States — such,  for  instance,  as  the  prohibition 
against  ex  post  facto  laws,  bills  of  attainder,  and  laws  impairing  the 
obligation  of  contracts.  But,  with  the  exception  of  these  and  a few 
other  restrictions,  the  entire  domain  of  the  privileges  and  immuni- 
ties of  citizens  of  the  States,  as  above  defined,  lay  within  the  con- 
stitutional and  legislative  power  of  the  States,  and  without  that  of 
the  federal  government.  Was  it  the  purpose  of  the  fourteenth 
amendment,  by  the  simple  declaration  that  no  State  should  make 
or  enforce  any  law  which  shall  abridge  the  privileges  and  immuni- 
ties of  citizens  of  the  United  States,  to  transfer  the  security  and 
protection  of  all  the  civil  rights  which  we  have  mentioned,  from  the 
States  to  the  federal  government  ? And  where  it  is  declared  that 
Congress  shall  have  the  power  to  enforce  that  article,  was  it  in- 
tended to  bring  within  the  power  of  Congress  the  entire  domain  of 
civil  rights  heretofore  belonging  exclusively  to  the  States  ? 

“ All  this  and  more  must  follow,  if  the  proposition  of  the  plaint- 
iffs in  error  be  sound,  for  not  only  are  these  rights  subject  to  the 
control  of  Congress,  whenever  in  its  discretion  any  of  them  are  sup- 
posed to  be  abridged  by  State  legislation,  but  that  body  may  also 
pass  laws  in  advance,  limiting  and  restricting  the  exercise  of  legis- 
lative power  by  the  States,  in  their  most  ordinary  and  most  useful 
functions,  as  in  its  judgment  it  may  think  proper  on  all  such  sub- 
jects. And  still  further,  such  a construction,  followed  by  the  re- 
versal of  the  judgments  of  the  Supreme  Court  of  Louisiana  in  these 
cases,  would  constitute  this  court  a perpetual  censor  upon  all  legis- 
lation of  the  States,  on  the  civil  rights  of  their  own  citizens,  with 
authority  to  nullify  such  as  it  did  not  approve  as  consistent  with 
those  rights  as  they  existed  at  the  time  of  the  adoption  of  this 
amendment. 

‘‘  The  argument,  we  admit,  is  not  always  the  most  conclusive 
which  is  drawn  from  the  consequences  urged  against  the  adoption 
of  a particular  construction  of  an  instrument.  But  when,  as  in  the 
case  before  us,  these  consequences  are  so  serious,  so  far-reaching 
and  pervading,  so  great  a departure  from  the  structure  and  spirit  of 
our  institutions;  when  the  effect  is  to  fetter  and  degrade  the  State 
governments  by  subjecting  them  to  the  control  of  Congress,  in  the 
exercise  of  powers  hereto  ore  universally  conceded  to  them  of  the 
most  ordinary  and  fundamental  character;  when  it  fact  it  radically 
changes  the  whole  theory  of  the  relations  of  the  State  and  federal 
governments  to  each  other,  and  of  both  of  these  governments  to  the 
people;  the  argument  has  a- force  that  is  irresistible,  in  the  absence 
of  language  which  expresses  such  a purpose  too  clearly  to  admit  of 
doubt. 

“ We  are  convinced  that  no  such  results  were  intended  by  the 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT”  5L5 


Congress  which  proposed  these  amendments,  nor  by  the  legislatures 

of  the  States  which  ratified  them.” 

********* 

Nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.” 

In  the  light  of  the  history  of  these  amendments,  and  the  per- 
vading purpose  of  them,  which  we  have  already  discussed,  it  is  not 
difficult  to  give  a meaning  to  this  clause.  The  existence  of  laws  in 
the  States  where  the  newly  emancipated  negroes  resided,  which  dis- 
criminated with  gross  injustice  and  hardship  against  them,  was  the 
evil  to  be  remedied  by  this  clause  as  a class,  and  by  it  such  laws 
are  forbidden. 

‘‘  If,  however,  the  States  did  not  conform  their  laws  to  its  re- 
quirements, then,  by  the  fifth  section  of  the  article  of  amendment, 
Congress  was  authorized  to  enforce  it  by  suitable  legislation.  We 
doubt  very  much  whether  any  action  of  a State,  not  directed  by 
way  of  discrimination  against  the  negroes  as  a class,  or  on  account 
of  their  race,  will  ever  be  held  to  come  within  the  purview  of  this 
provision.  It  is  so  clearly  a provision  for  that  race  and  that  emer- 
gency that  a strong  case  would  be  necessary  for  its  application  to 
any  other.  But  as  it  is  a State  that  is  to  be  dealt  with,  and  not 
alone  the  validity  of  its  laws,  we  may  safely  leave  that  matter  until 
Congress  shall  have  exercised  its  power,  or  some  case  of  State  op- 
pression, by  denial  of  equal  justice  in  the  courts,  shall  have  claimed 
a decision  at  our  hands.  We  find  no  such  case  in  the  one  before 
us,  and  do  not  deem  it  necessary  to  go  over  the  argument  again,  as 
it  may  have  relation  to  this  particular  clause  of  the  amendment. 

“ In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate 
the  powers  of  the  national  government  from  those  of  the  State  gov- 
ernments, and  though  this  line  has  never  been  very  well  defined 
in  public  opinion,  such  a division  has  continued  from  that  day  to 
this. 

“ The  adoption  of  the  first  eleven  amendments  to  the  Constitu- 
tion so  soon  after  the  original  instrument  was  accepted,  shows  a 
prevailing  sense  of  danger  at  that  time  from  the  federal  power. 
And  it  cannot  be  denied  that  such  a jealousy  continued  to  exist 
with  many  patriotic  men  until  the  breaking  out  of  our  late  civil  war. 
It  was  then  discovered  that  the  true  danger  to  the  perpetuity  of  the 
Union  was  in  the  capacity  of  the  State  organizations  to  combine 
and  concentrate  all  the  powers  of  the  State,  and  of  contiguous 
States,  for  the  determined  resistance  to  the  general  government. 

“ Unquestionably  this  has  given  great  force  to  the  argument, 
and  added  largely  to  the  number  of  those  who  believe  in  the  neces- 
sity of  a strong  national  government. 

“ But  however  pervading  this  sentiment,  and  however  it  may 
have  'contributed  to  the  adoption  of  the  amendments  we  have  been 
considering,  we  do  not  see  in  these  amendments  any  purpose  to  de- 
stroy the  main  features  of  the  general  system.  Under  the  pressure 
35 


546  ARGUMENT  OF  DAVID  DUDLEY  FEELD  ON  THE 


of  all  the  excited  feelings  growing  out  of  the  war,  our  statesmen 
have  still  believed  that  the  existence  of  the  States  with  powers  for 
domestic  and  local  government,  including  the  regulation  of  civil 
rights — the  rights  of  person  and  of  property — was  essential  to  the 
perfect  working  of  our  complex  form  of  government,  though  they 
have  thought  proper  to  impose  additional  limitations  on  the  States, 
and  to  confer  additional  power  on  that  of  the  nation.” 

These  extracts  from  the  opinion  of  the  court,  delivered  by  Mr. 
Justice  Miller,  are  given  at  such  length,  because  they  are  so  import- 
ant in  themselves,  and  dispose  of  so  many  of  the  questions  in  the 
present  case. 

Of  the  three  dissenting  opinions,  two  certainly,  and  perhaps  the 
third,  properly  understood,  contain  nothing  in  conflict  with  what  is 
here  stated.  The  difference  of  views  among  the  learned  judges  of 
the  court  was  upon  the  extent  of  the  prohibitions,  not  upon  the 
means  of  enforcing  them. 

If  the  thirteenth  and  fourteenth  amendments  be  understood  and 
applied,  as  it  is  here  insisted  they  should,  they  will  prove  most 
beneficent  in  results.  The  prohibitions  upon  the  States  are  merely 
such  as  every  State  Constitution  should  contain  for  its  own  legisla- 
ture. It  is  only  when  the  interference  of  Congress  is  invoked  that 
the  danger  begins,  and  that  will  cease  so  soon  as  it  is  understood 
that  Congress  cannot  act  until  the  States  have  legislated  in  violation 
of  the  prohibition,  and  then  only  by  way  of  nullifying  their  action 
through  the  courts. 

I have  heard  it  argued  that,  as  allegiance  and  protection  create 
mutual  obligations,  all  who  have  been  made  citizens  of  the  United 
States  by  the  late  amendments  are  entitled  to  the  protection  of  the 
United  States.  So  they  are,  but  that  does  not  prove  the  constitu- 
tionality of  the  present  legislation,  and  for  two  reasons.  The  first 
is,  that  all  the  citizens  of  the  States  were  also  citizens  of  the  United 
States  before  the  amendments,*  and  the  effect  of  the  new  definition 
was  merely  to  increase  the  number  of  citizens,  but  not  their  rights. 
That  protection  of  the  federal  government  which  the  whites  could 
not  have  claimed  before,  the  blacks  cannot  claim  now.  The  second 
reason  is,  that  the  allegiance  and  protection  of  the  Union  are  qual- 
ified by  the  allegiance  and  protection  of  the  States.  The  same  per- 
son is  a citizen  of  both,  owes  allegiance  to  both,  and  may  claim  the 
protection  of  both.  Each  is  his  sovereign  to  a certain  extent. 
When,  therefore,  a citizen  of  the  United  States  claims  the  protec- 


* Passenger  Cases,  7 Plow.  492,  and  Slaughter-House  Cases,  l6  Wall.  72. 


CONSTITUTIONALITY  OF  THE  “ENFORCEMENT  ACT.”  547 


tion  of  the  United  States,  the  first  inquiry  should  be,  against  what, 
and  in  what  manner  the  protection  may  be  given.  He  cannot  be 
protected  against  the  lawful  act  of  his  own  State,  nor  can  he  be  pro- 
tected against  its  unlawful  act,  except  in  the  manner  sanctioned  by 
the  Constitution  of  the  United  States.  Who  are  citizens  we  learn 
from  one  part  of  that  instrument;  their  rights  and  duties  from  an- 
other. 

I must  here  close  my  part  of  the  discussion.  The  general  claim 
on  the  part  of  the  federal  government  is  nothing  more  nor  less  than 
this:  that  Congress  is  clothed  with  authority  to  punish  in  federal 
courts  any  persons  for  agreeing  together  in  intention  to  prevent  or 
hinder  the  free  exercise  and  enjoyment  by  any  citizen  of  any  right 
or  privilege  granted  or  secured  to  him  by  the  Constitution  or  laws 
of  the  United  States,  these  laws  being  not  only  the  three  statutes 
just  mentioned,  but  all  other  existing  statutes,  revised  or  not  re- 
vised, and  all  statutes  which  Congress  may  choose  hereafter  to  pass. 
And  it  seems  to  be  assumed,  furthermore,  that  the  mere  mention  in 
the  Constitution  of  a right  is  the  same  thing  as  granting  or  securing 
it,  and  that  whether  the  mention  is  made  in  the  old  amendments 
containing  prohibitions  upon  the  United  States,  or  in  the  new  con- 
taining prohibitions  upon  the  States.  This  is  an  assertion  of  abso- 
lutism or  legislative  omnipotence  amazing  to  contemplate. 

The  particular  claim  in  the  present  case  is  authority  to  punish 
an  agreement  between  two  or  more  persons  to  prevent  or  hinder  the 
free  exercise  and  enjoyment  by  any  citizen  of  the  right  to  the  equal 
protection  of  the  laws,  the  right  to  life,  liberty  and  property,  unless 
deprived  thereof  by  due  process  of  law,  the  right  to  vote,  without 
regard  to  race,  color  or  previous  servitude,  the  right  to  meet  others 
in  assembly,  and  the  right  to  keep  and  bear  arms.  This  is  the 
claim  in  the  present  case,  reduced  to  its  strictest  limit.  It  includes, 
of  course,  as  has  been  already  said,  the  power  to  define  what  is  the 
right  to  the  protection  of  the  laws,  what  is  the  right  to  life,  liberty 
and  property,  what  is  due  process  of  law,  what  is  the  right  to  vote, 
what  is  the  right  to  keep  and  bear  arms,  and  what  is  the  right  of 
assembly.  It  would  be  a logical  inconsistency  to  pretend  that  a 
government  can  clothe  its  courts  with  authority  to  punish  for  crime 
without  authority  to  say  in  what  that  crime  consists.  When  the 
Constitution  gave  Congress  power  to  punish  piracies  and  felonies 
on  the  high  seas,  and  offenses  against  the  laws  of  nations,  it  gave 
also  the  power  to  define  them. 


ARGUMENT  OF  DAVID  DUDLEY  FIELD  ON  THE 


i 13 

The  mere  agreement  or  conspiracy,  without  any  overt  act,  is  the 
crime,  unless  the  “ or  ” in  the  second  member  of  the  sentence  of 
the  6th  section  of  the  Enforcement  Act  is  to  be  read  as  if  it  were 
^‘and.”  It  may  not  be  out  of  place  to  observe,  that  an  accusation 
of  conspiracy  is  of  all  accusations  the  most  dangerous  to  meet,  and 
the  easiest  to  make  men  believe,  in  an  excited  community.  It  is 
the  harshest  engine  of  tyranny  ever  used  under  the  form  of  law; 
and  its  frequent  use  is  the  strongest  evidence  of  misgovernment. 
From  the  bloody  days  when  the  compassing  or  imagining  the  death 
of  a king  was  the  miserable  pretense  upon  which  tyrants  took  the 
lives  and  confiscated  the  estates  of  their  victims,  to  the  present 
hour,  no  surer  proof  of  good  or  evil  government  can  be  found  than 
the  chapter  on  conspiracies  in  the  statute  book  of  a country.  One 
has  but  to  compare  the  statutes  of  well-governed  Connecticut  with 
the  statutes  of  misgoverned  Ireland  to  learn  what  an  odious  engine 
of  oppression  is  the  law  of  conspiracy.  And  what  an  abundance 
of  materials  for  the  supply  of  this  engine  are  furnished  by  these 
acts  of  Congress.  If  two  magistrates,  being  convinced  by  counsel, 
decide  that  some  of  their  provisions  are  invalid,  or  if  two  counsel 
in  consultation  come  to  that  conclusion  and  so  advise  their  clients, 
do  they  not  put  themselves  in  peril  of  the  penalties  denounced  by 
the  acts  ? If  two  judges  of  a State  court,  after  painstaking  delib- 
eration, decide  that  a statute  of  their  State,  though  in  conflict  with 
some  portions  of  the  Enforcement  Act,  is  nevertheless  valid,  or  even 
if,  without  deciding,  they  agree  so  to  decide,  are  they  not  liable  to 
be  sent  to  the  penitentiary,  under  the  6th  section  ? Would  not  the 
6th  and  17th  sections  send  to  prison  the  judges  of  California  who 
decided  in  favor  of  sending  back  the  Chinese  women  ? 

It  is  difficult  to  speak  of  the  pretensions  upon  which  this  legis- 
lation rests,  in  guarded  language.  It  is  a relief  to  think  that  they 
are  here  to  be  tested  by  the  Constitution  of  the  country,  without  the 
disturbing  influence  of  party;  by  that  Constitution  which  is  above 
all  parties,  and  which  was  made,  not  for  the  use  of  partisans,  but 
for  the  safety  and  happiness  of  the  whole  people,  and  not  for  one, 
but  many  generations. 

The  first  two  words  of  the  national  motto  are  as  much  a part 
of  it  as  the  last.  They  have  never  been  changed  since  their  use 
began.  They  have  been  borne  in  every  battle  and  on  every  march, 
by  land  or  sea,  in  defeat  as  in  victory.  They  are  still  blazoned  on 
Dur  escutcheon,  and  copied  in  every  seal  of  office.  You  will  find 


COJS^STITUTIONALITY  OF  THE  ‘^ENFORCEMENT  ACT.”  549 


them  on  all  your  commissions.  May  that  motto  never  be  mutilated 
or  disowned.  It  should  be  written  on  the  walls  of  the  capitol  and 
of  every  State  house.  I would  wish  it  written  on  the  ceiling  of  this 
chamber,  that,  upon  every  turning  of  the  face  upward,  the  eye 
might  behold  it.  Its  three  words  contain  a faithful  history;  may 
they  abide  for  ages,  pledges  of  the  future,  as  they  are  witnesses  of 
the  past. 


DECLARATION  OF  LORD  MANSFIELD  TO  THE  MOB, 
IN  THE  COURT  OF  KING’S  BENCH. 


I will  do  my  duty  unawed.  What  am  I to  fear  } That  “ mendax  in- 
famia  ” [lying  scandal]  from  the  press,  which  daily  coins  false  facts  and 
false  motives  } The  lies  of  calumny  carry  no  terror  to  me.  1 trust  that 
the  temper  of  my  mind,  and  the  color  and  conduct  of  my  life,  have  given 
me  a suit  of  armor  against  these  arrows.  If  during  this  King’s  reign  I have 
ever  supported  his  government,  and  assisted  his  measures,  I have  done  it 
without  any  other  reward  than  the  consciousness  of  doing  what  I thought 
right.  If  I have  ever  opposed,  I have  done  it  upon  the  points  themselves, 
without  mixing  in  party  or  faction,  and  without  any  collateral  views.  I 
honor  the  King  and  respect  the  people ; but  many  things  acquired  by  the 
favor  of  either  are,  in  my  account,  objects  not  worthy  of  ambition.  I wish 
popularity,  but  it  is  that  popularity  which  follows,  not  that  which  is 
run  after.  It  is  that  popularity  which,  sooner  or  later,  never  fails  to  do 
justice  to  the  pursuit  of  noble  ends  by  noble  means.  I will  not  do  that 
which  my  conscience  tells  me  is  wrong  upon  this  occasion,  to  gain  the 
huzzas  of  thousands,  or  the  daily  praise  of  all  the  papers  which  come  from 
the  press.  I will  not  avoid  doing  what  I think  is  right,  though  it  should 
draw  on  me  the  whole  artillery  of  libels — all  that  falsehood  and  malice  can 
invent,  or  the  credulity  of  a deluded  populace  can  swallow,  I can  say  with 
a great  magistrate,  upon  an  occasion  and  under  circumstances  not  unlike, 
'"''Ego  hoc  a7ii)no  sejnper  fui,  ut  invidiam  virtute  partam,  gloriam  non 
invidiam,  putarcm." 

The  threats  go  farther  than  abuse — personal  violence  is  denounced.  I 
do  not  believe  it.  It  is  not  the  genius  of  the  worst  of  men  of  this  country, 
in  the  worst  of  times.  But  I have  set  my  mind  at  rest.  The  last  end  that 
can  happen  to  any  man  never  comes  too  soon,  if  he  falls  in  support  of  the 
law  and  liberty  of  his  country  (for  liberty  is  synonymous  with  law  and 
government).  Such  a shock,  too,  might  be  productive  of  public  good.  It 
might  awake  the  better  part  of  the  kingdom  out  of  that  lethargy  which 
seems  to  have  benumbed  diem,  and  bring  the  mad  part  back  to  their  senses, 
as  men  intoxicated  are  sometimes  stunned  into  sobriety. 

Once  foi  all,  let  it  be  understood,  that  no  endeavors  of  this  kind  will  in- 
fluence any  man  who  at  present  sits  here.  If  they  had  any  effect,  it  would 
be  contrary  to  their  intent ; leaning  against  their  impression  might  give  a 
bias  the  other  way.  But  I hope  and  I know  that  I have  fortitude  enough 
to  resist  even  that  weakness.  No  libels,  no  threats,  nothing  that  has  hap- 
pened, nothing  that  can  happen,  will  weigh  a feather  against  allowing  the 
defendant,  upon  this  and  every  other  question,  not  only  the  whole  advan- 
tage he  is  entitlec  to  from  substantial  law  and  justice,  but  every  benefit 
from  the  most  critical  nicety  of  form  which  any  other  defendant  could 
claim  under  the  like  objection.” — [Lord  Mansfield,  in  reversing  the  Outlawry  in 
Wilkes’  Case,  June  8.  1768.] 

[550] 


SPEECH  OF  THOMAS  ERSKINE, 


For  the  Prosecution,  in  the  Proceedings  against  Thomas 
Williams,  for  Publishing  Paine’s  “ Age  of  Reason.’* 
[Howell’s  St.  Tr.  vol.  26,  p.  653.] 

IN  THE  COURT  OF  KING’S  BENCH,  BEFORE  LORD  KENYON 
AND  A SPECIAL  JURY,  JUNE  24th,  1797. 


Analysis  of  Me.  Erskine’s  Speech. 


1.  Attitude  of  counsel  not  inconsistent  with 

views  formerly  expressed. 

2.  The  defense  anticipated. 

3.  Christianity  the  foundation  upon  which 

our  system  of  jurisprudence  rests. 

4.  A free  press  an  inestimable  blessing. 

5.  The  principles  applicable  to  the  liberty 

of  the  press. 

6.  Distinction  between  legitimate  inquiry 

and  scurrilous  abuse. 

7.  Illustrations  of  the  argument. 

8.  Mischievous  and  cruel  effects  of  this  il- 

legal publication. 


9.  The  character  of  the  defense  an  anom- 
aly, and  inconsistent  with  the  juris- 
diction of  the  court. 

10.  Intellectual  superiority  of  Christian  be- 

lievers.— N ewton . 

11.  Boyle,  Locke,  and  Sir  Matthew  Hale. 

12.  John  Milton’s  immortal  offering. 

13.  Adherence  to  doctrines  of  the  New  Tes- 

tament would  banish  wickedness 
from  the  world. 

14.  Religion  and  morality  alone  constitute 

the  safety  of  the  State. 

15.  Inferior  object  and  capacity  of  Paine’s 

work. 


Thomas  Paine,  the  friend,  at  one  time,  of  Washington,  of  Jefferson  and 
Franklin  ; who  had  been  honored  by  the  Congress  of  the  United  States  for  his 
distinguished  services  during  the  revolution;  whose  worth  and  patriotism  were, 
in  like  manner,  recognized  by  the  great  State  of  New  York;  Thomas  Paine, 
whose  genius  contributed  so  much  towards  the  development  and  success  of  the 
independence  of  the  colonies;  who  loved  freedom  for  its  own  sake;  who  became 
conspicuous  during  the  French  revolution  as  the  “apostle  of  liberty” — this 
gifted  man,  after  he  had  achieved  so  much  for  the  welfare  of  his  race,  chose, 
unfortunately  for  himself,  to  forfeit  the  respect  and  esteem  of  his  fellow 
men,  and  of  posterity,  because  of  his  wanton  attack  upon  the  Scriptures  and 
the  life  and  character  of  the  Saviour  of  mankind.  In  the  year  1794,  he  composed 
the  first  part,  and  in  the  following  year  the  second  part,  of  an  indecent  and 
blasphemous  attack  upon  Christianity,  which  he  entitled  the  “Age  of  Reason,” 
being  what  he  was  pleased  to  term  an  investigation  of  true  and  fabulous  theol- 
ogy. The  work  lacks  the  dignity  and  candor  of  respectful  inquiry,  and  is  in  no 
way  worthy  the  intellect  of  Paine.  It  contains  no  sublime  thought,  and  presents 
in  support  of  the  theories  advanced,  no  arguments  which  are  at  all  convincing 
or  satisfactory,  or  which  indicate  even  a thorough  knowledge  of  the  contempo- 

[551] 


552 


SPEECH  OF  THOMAS  ERSKINE 


raneous  history  of  the  Bible.  With  the  great  problems  of  eternity,  this  defamer 
of  all  theology  has  no  concern,  and  treats  with  ridicule,  truths  which  touch  the 
highest  point  of  human  interest  and  human  comprehension.  Instead  of  meeting 
great  questions  within  the  domain  of  reason,  he  frequently  drops  into  poor  at- 
tempts at  wit,  which  are  painful  and  disgusting  to  refined  sensibilities,  and  his 
expressions  are  often  tinctured  with  coarseness  and  vulgarity.  His  performance 
becomes  culpable,  in  view  of  the  fact  that  without  sufficient  reason,  and  appa- 
rently from  a desire  to  indulge  his  vanity,  the  author  has  labored  to  shake  the 
faith  of  those  who  derive  hope  and  consolation  from  a book  containing  higher 
thoughts,  purer  morality,  and  wiser  maxims  than  has  ever  been  written  in  any 
language  or  in  any  age.  The  promises  of  an  immortal  inheritance,  the  rewards 
assured  to  the  Christian,  more  desirable  and  enticing  than  any  which  have  ever 
attracted  the  attention  of  mortals  ; an  heirship  coeval  with  the  creator  of  the 
world — these  are  all  brushed  aside.  In  their  stead,  however,  the  sophistical  skeptic 
suggests  nothing  possessing  even  the  merit  of  novelty  or  originality.  While  pro- 
fessing to  believe  in  a God  and  immortality,  Thomas  Paine  has  produced  a work, 
the  tendency  of  which  is  to  banish  from  weaker  minds  than  his  own,  the  idea  of 
the  existence  of  a God  and  an  immortal  life;  a work  which  strikes  at  the  very 
foundations  of  society,  and  assails  the  moral  principles  upon  which  society  and 
all  human  obligations  must  rest. 

Paine,  though  a man  of  vigorous  mind,  was  not  an  accomplished  or  finished 
scholar.  As  to  acquirements  and  elegant  letters,  his  warmest  admirers  would 
not  venture  to  compare  him  with  the  distinguished  jurist,  linguist  and  antiquary, 
Sir  Whlliam  Jones;  and  it  is  fair  to  presume,  that  had  he  possessed  a tithe  of  that 
gentleman’s  learning,  he  would,  perhaps,  never  have  written  the  “ Age  of  Rea- 
son.” One  very  singular  fact  about  Paine’s  production  is,  that  its  author  fails  to 
recognize  even  the  literary  merit  of  the  book  from  which,  in  his  early  life,  he  had 
often  preached.  Apart  from  the  inspiration  of  the  sacred  volume,  he  seeks  to 
deride  its  sublime  eloquence  and  masterly  composition.  Sir  William  Jones, 
who  was  conversant  with  no  less  than  twenty-seven  languages,  speaking  of  its 
excellence  in  this  respect,  says : “ I have  carefully  and  regularly  perused  these 
Holy  Scriptures,  and  am  of  opinion  that  the  volume,  independently  of  its 
divine  origin,  contains  more  sublimity,  more  morality,  more  important  history, 
and  finer  strains  of  eloquence,  than  can  be  collected  from  any  other  book,  in 
whatever  language  it  may  have  been  written.”  Upon  another  occasion  the 
same  author  remarks  : “ The  two  parts  of  which  the  Scriptures  consists,  are  con- 
nected by  a chain  of  compositions,  which  bear  no  resemblance  in  form  or  style  to 
any  that  can  be  produced  from  the  stores  of  Grecian,  Indian,  Persian,  or  even 
Arabian  learning.  The  antiquity  of  those  compositions  no  man  doubts,  and  the 
unrestrained  application  of  them  to  events  long  subsequent  to  their  publication, 
is  a solid  ground  of  belief  that  they  are  genuine  compositions,  and  consequently 
inspired.”  To  demonstrate  that  these  statements  are  not  mere  generalities,  Mr. 
Burgh,  an  English  writer,  in  his  work  entitled  the  “Dignity  of  Human  Nature,*’ 
takes  a passage  from  the  beginning  of  the  eighth  book  of  the  Iliad,  which  he 
regards  as  the  loftiest  strain  in  the  most  sublime  of  all  human  productions,  and 
contrasts  it  with  a passage  from  the  Bible.  Speaking  of  this  selection  from 
Homer,  quoted  below,  Mr.  Burgh  remarks  : “ There  the  greatest  of  all  human 
imaginations  labors  to  describe,  not  a hero,  but  a God ; not  an  inferior  but  the 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


553 


Supreme  God  ; not  to  show  his  superiority  over  mortals,  but  to  the  heavenly 
powers  ; and  not  to  one,  but  all  of  them  united.”  The  passage  is  rendered  by 
Mr.  Bryant,  in  his  elegant  translation,  as  follows  : 

Now  morn  in  saffron  robes  had  spread  her  light 
O’er  all  the  earth,  when  Jove,  the  Thunderer, 

Summoned  the  gods  to  council  on  the  heights 
Of  many-peaked  Olympus.  He  addressed 
The  assembly,  and  all  listened  as  he  spoke. 

“ Hear,  all  ye  gods  and  all  ye  goddesses! 

While  I declare  the  thought  within  my  breast, 

Let  none  of  either  sex  presume  to  break 
The  law  I give,  but  cheerfully  obey, 

That  my  design  may  sooner  be  fulfilled. 

Whosoever,  stealing  from  the  rest,  shall  seek. 

To  aid  the  Grecian  cause,  or  that  of  Troy, 

Back  to  Olympus,  scourged  and  in  disgrace, 

Shall  he  be  brought,  or  I will  seize  and  hurl 
The  offender  down  to  rayless  Tartarus  ; 

Deep,  deep  in  the  great  gulf  below  the  earth. 

With  iron  gates,  and  threshold  forged  of  brass,— 

As  far  beneath  the  shades,  as  earth  from  heaven. 

Then  shall  he  learn  how  greatly  I surpass 
All  other  gods  in  power.  Try,  if  ye  will. 

Ye  gods,  that  all  may  know : suspend  from  heaven 
A golden  chain ; let  all  the  immortal  host 
Cling  to  it  from  below  ; ye  could  not  draw. 

Strive  as  ye  might,  the  all-disposing  Jove, 

From  heaven  to  earth.  And  yet,  if  I should  choose 
To  draw  it  upward  to  me.  I should  lift. 

With  it  and  you,  the  earth  itself  and  sea 
Together,  and  I then  would  bind  the  chain. 

Around  the  summit  of  the  Olympian  mount, 

And  they  should  hang  aloft.  So  far  my  power 
Surpasses  all  the  power  of  gods  and  men.” 

“With  this  most  masterly  passage,”  says  Mr.  Burgh,  “of  the  greatest  master 
of  the  sublime  of  all  antiquity — the  writer  who  probably  had  the  greatest  natural 
and  acquired  advantages  of  any  mortal  for  perfecting  a genius — let  the  following 
verbal  translation  of  a passage  from  writings  penned  by  one  brought  up  a shep- 
herd, and  in  a country  where  learning  was  not  thought  of,  be  compared,  that  the 
difference  may  appear: 

“‘O  Lord,  my  God,  thou  art  very  great!  thou  art  clothed  with  honor  and 
majesty!  who  coverest  thyself  with  light  as  with  a garment  ; who  stretchest  out 
the  heavens  like  a canopy  ; who  layest  the  beams  of  his  chambers  in  the  waters  ; 
who  makest  the  clouds  his  chariots  ; who  walkest  upon  the  wings  of  the  winds  ; 
who  makest  his  angels  spirits,  his  ministers  a flame  of  fire  ; who  laid  the  founda- 
tion of  the  earth,  that  it  should  not  be  moved  forever.  Thou  coverest  it  with 
the  deep,  as  with  a garment — the  waters  that  stood  above  the  mountains.  At 
thy  rebuke  they  fled ; at  the  voice  of  thy  thunder  they  hasted  away.  They  go 
up  by  the  mountains  ; they  go  down  by  the  valleys,  unto  the  place  thou  hast 
founded  for  them.  Thou  hast  set  a bound,  that  they  may  not  pass  over ; that 
they  may  turn  not  again  to  cover  the  earth. 

“‘O  Lord,  how  manifold  are  thy  works!  In  wisdom  hast  thou  made  them 
all.  The  earth  is  full  of  thy  riches.  So  is  the  great  and  wide  sea,  wherein  are 
creatures  innumerable,  both  small  and  great.  There  go  the  ships  ; there  is  that 
leviathan,  which  thou  hast  made  to  play  therein.  These  all  wait  upon  thee,  that 
thou  mayest  give  them  their  food  in  due  season.  That  thou  givest  them  they 
gather.  Thou  openest  thy  hand,  they  are  filled  with  good  ; thou  hidest  thy  face 


654 


SPEECH  OF  THOMAS  ERSKINE 


they  are  troubled  ; they  die  and  return  to  their  dust.  Thou  sendest  forth  thy 
spirit,  they  are  created;  and  thou  renewest  the  face  of  the  earth.  The  glory  of 
the  Lord  shall  endure  forever.  The  Lord  shall  rejoice  in  his  works.  He  look- 
eth  on  the  earth,  and  it  trembleth.  He  toucheth  the  hills,  and  they  smoke.  I 
will  sing  unto  the  Lord  as  long  as  I live.  I will  sing  praises  unto  my  God,  while 
I have  my  being.’  ” 

This  single  illustration  shows  the  sophistry  of  Paine’s  criticism  on  the  grandest 
and  most  dignified  literary  production  in  the  world.  The  “Age  of  Reason,”  how- 
ever, produced  pernicious  effects  among  the  middle  and  lower  classes  in  Corn- 
wall, Nottingham,  Leeds,  and  many  other  places  in  England,  and  even  in  Scot- 
land, where  the  work  had  been  circulated.  Its  influence  was  regarded  as  dan- 
gerous, affecting  the  happiness  and  welfare  of  the  uneducated  or  ignorant  classes, 
who  could  not  readily  answer  its  plausible  utterances,  and  the  “ Society  for  the 
Prevention  of  Vice  ” decided  to  attempt  its  suppression.  An  indictment  was  ac- 
cordingly preferred  against  Thomas  Williams,  of  the  parish  of  St.  Giles,  in  the 
county  of  Middlesex,  for  a blasphemous  libel  in  publishing  Paine’s  work.  The 
legal  theory  of  this  indictment  was,  that  every  publication  which  has  a direct 
tendency  to  debauch  the  morals  of  the  people,  is  punishable  as  a libel  ; that 
blasphemy  is  an  offense,  not  only  against  God  and  religion,  but  a crime  against 
the  laws,  the  State  and  the  government ; for  to  say  that  Christianity  is  a cheat 
is  to  dissolve  all  those  obligations  whereby  civil  societies  are  preserved,  (Tay- 
lor’s Case,  I Ventris,  293;  S.  c.  3 Keble,  607  ; Rex  v.  Curl,  Strange,  789;  Rex  v, 
Woolston,  Fitzgibbon,  64  ; Strange,  834  ; Blackstone’s  Com.  vol.  4,  pp.  43,  59.) 

The  prosecution  was  conducted  by  Thomas  Erskine,  the  first  and  greatest 
of  English  advocates,  who,  five  years  before,  at  the  expense  of  his  office  of  at- 
torney-general. defended  Paine  on  an  indictment  for  libel  for  publishing  the  second 
part  of  the  “ Rights  of  Man.”  The  Prince  of  Wales,  as  a reward  for  his  brave 
and  honest  defense  of  his  client,  disgraced  himself  by  removing  Erskine  from 
office.  In  his  opening  to  the  jury  in  that  case,  Mr.  Erskine  made  the  noble  dec- 
laration : “ I will  forever — at  all  hazards — assert  the  dignity,  independence  and 
integrity  of  the  English  bar,  without  which  impartial  justice,  the  most  valuable 
part  of  the  English  Constitution,  can  have  no  existence.” 

With  Mr.  Erskine,  in  the  case  of  Williams,  were  associated  William  Gar- 
row  and  John  Bayley.  The  defendant  was  represented  by  Stewart  Kyd.  Mr. 
Erskine  opened  the  case  for  the  prosecution  as  follows  : 

Gentlemen  of  the  Jury: — The  charge  of  blasphemy,  which 
is  put  upon  the  record  against  the  printer  of  this  publication,  is 
not  an  accusation  of  the  servants  of  the  Crown,  but  comes  before 
you  sanctioned  by  the  oaths  of  a grand  jury  of  the  country.  It 
stood  for  trial  upon  a former  day  ; but  it  happening,  as  it  frequent- 
ly does,  without  any  imputation  on  the  gentlemen  named  in  the 
panel,  that  a sufficient  number  did  not  appear  to  constitute  a full 
special  jury,  I thought  it  my  duty  to  withdraw  the  cause  from  trial 
till  I could  have  the  opportunity,  which  is  now  open  to  me,  of  ad- 
dressing myself  to  you,  who  were  originally  appointed  to  try  it.  I 
pursued  this  course,  however,  from  no  jealousy  of  the  common 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


555 


juries  appointed  by  the  laws  for  the  ordinary  service  of  the  court, 
since  my  whole  life  has  been  one  continued  experience  of  their  vir- 
tues, but  because  I thought  it  of  great  importance  that  those  who 
were  to  decide  upon  a cause  so  very  momentous  to  the  public, 
should  have  the  highest  possible  qualifications  for  the  decision. 
That  they  should  not  only  be  men  capable,  from  their  education, 
of  forming  an  enlightened  judgment,  but  that  their  situations  should 
be  such  as  to  bring  them  within  the  full  view  of  their  enlightened 
country,  to  which,  in  character  and  in  estimation,  they  were  in  their 
own  turns  to  be  responsible. 

I.  Attitude  of  counsel  not  inconsistent  with  views  for- 
merly EXPRESSED. 

Not  having  the  honor,  gentlemen,  to  be  sworn  for  the  king,  as 
one  of  his  counsel,  it  has  fallen  much  oftener  to  my  lot  to  defend 
indictments  for  libels,  than  to  assist  in  the  prosecution  of  them. 
But  I feel  no  embarrassment  from  that  recollection,  since  I shall 
not  be  found  to-day  to  express  a sentiment  or  to  utter  an  expression 
inconsistent  with  those  invaluable  principles  for  which  I have  uni- 
formly contended  in  the  defense  of  others.  Nothing  that  I have 
ever  said,  either  professionally  or  personally,  for  the  liberty  of  the 
press,  do  I mean  to  deny,  to  contradict,  or  counteract.  On  the 
contrary,  I desire  to  preface  the  discourse  I have  to  make  to  you, 
with  reminding  you  that  it  is  your  most  solemn  duty  to  take  care  it 
suffers  no  injury  in  your  hands.  A free  and  unlicensed  press,  in 
the  just  and  legal  sense  of  the  expression,  has  led  to  all  the  bless- 
ings, both  of  religion  and  government,  which  Great  Britain,  or  any 
part  of  the  world,  at  this  moment  enjoys,  and  is  calculated  still 
further  to  advance  mankind  to  higher  degrees  of  civilization  and 
happiness.  But  this  freedom,  like  every  other,  must  be  limited  to 
be  enjoyed,  and,  like  every  human  advantage,  may  be  defeated  by 
its  abuse. 


2.  The  DEFENSE  anticipated 

Gentlemen,  the  defendant  stands  indicted  for  having  published 
this  book,  which  I have  only  read  from  the  obligations  of  profes- 
sional duty,  and  which  I rose  from  the  reading  of  with  astonishment 
and  disgust.  Standing  here  with  all  the  privileges  belonging  to  the 
highest  counsel  for  the  Crown,  I shall  be  entitled  to  reply  to  any 
defense  that  shall  be  made  for  the  publication.  I shall  wait  with 
patien<:e  till  I hear  it.  Indeed,  if  I were  to  anticipate  the  defense 


556 


SPEECH  OF  THOMAS  ERSKINE 


which  I hear  and  read  of,  it  would  be  defaming,  by  anticipation, 
the  learned  counsel  who  is  to  make  it.  For  if  I am  to  collect  it, 
even  from  a formal  notice  given  to  the  prosecutors  in  the  course  of 
the  proceedings,  I have  to  expect  that,  instead  of  a defense  con- 
ducted according  to  the  rules  and  principles  of  English  law  and 
justice,  the  foundation  of  all  our  laws,  and  the  sanctions  of  all  our 
justice,  are  to  be  struck  at  and  insulted. 

3.  Christianity  the  foundation  upon  which  our  system  of 

JURISPRUDENCE  RESTS. 

What  is  the  force  of  that  jurisdiction  which  enables  the  court 
to  sit  in  judgment  ? What  but  the  oath  which  his  lordship  as  well 
as  yourselves  have  sworn  upon  the  Gospel  to  fulfill.  Yet  in  the 
King’s  Court,  where  his  majesty  is  himself  also  sworn  to  administer 
the  justice  of  England  in  the  King’s  Court,  who  receives  his  high 
authority  under  a solemn  oath  to  maintain  the  Christian  religion,  as 
it  is  promulgated  by  God  in  the  Holy  Scriptures,  I am  nevertheless 
called  upon,  as  counsel  for  the  prosecution,  to  produce  a certian 
book  described  in  the  indictment  to  be  the  Holy  Bible.  No  man 
deserves  to  be  upon  the  rolls  of  the  court  who  dares,  as  an  attor- 
ney, to  put  his  name  to  such  a notice.  It  is  an  insult  to  the  au- 
thority and  dignity  of  the  court  of  which  he  is  an  officer  ; since  it 
seems  to  call  in  question  the  very  foundations  of  its  jurisdiction.  If 
this  is  to  be  the  spirit  and  temper  of  the  defense  ; if,  as  I collect 
from  that  array  of  books  which  are  spread  upon  the  benches  behind 
me,  this  publication  is  to  be  vindicated  by  an  attack  on  all  the 
truths  which  the  Christian  religion  promulgates  to  mankind,  let  it 
be  remembered  that  such  an  argument  was  neither  suggested  nor 
justified  by  anything  said  by  me  on  the  part  of  the  prosecution.  In 
this  stage  of  the  proceedings,  I shall  call  for  reverence  to  the  sacred 
Scriptures,  not  from  their  merits  unbounded  as  they  are,  but  from 
their  authority  in  a Christian  country  ; not  from  the  obligations  of 
conscience,  but  from  the  rules  of  law.  For  my  own  part,  gentle- 
men, I have  been  ever  deeply  devoted  to  the  truths  of  Christianity, 
and  my  firm  belief  in  the  Holy  Gospel  is  by  no  means  owing  to  the 
prejudices  of  education,  though  I was  religiously  educated  by  the 
best  of  parents,  but  arises  from  the  fullest  and  most  continued  re- 
flections of  my  riper  years  and  understanding.  It  forms  at  this 
moment  the  great  consolation  of  a life  which,  as  a shadow,  must 
pass  away  ; and  without  it,  indeed,  I should  consider  my  long 
course  of  health  and  prosperity,  perhaps  too  long  and  uninterrupted 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


55T 


to  be  good  for  any  man,  only  as  the  dust  which  the  wind  scatters, 
and  rather  as  a snare  than  as  a blessing.  Much,  however,  as  I wish 
to  support  the  authority  of  the  Scriptures,  from  a reasoned  consid- 
eration of  them,  I shall  repress  that  subject  for  the  present.  But 
if  the  defense  shall  be  as  I have  suspected,  to  bring  them  at  all  into 
argument  or  question,  I shall  then  fulfill  a duty  which  I owe,  not 
only  to  the  court,  as  counsel  for  the  prosecution,  but  to  the  public, 
to  state  what  I feel  and  know  concerning  the  evidences  of  that  re- 
ligion which  is  reviled  without  being  examined,  and  denied  without 
being  understood. 

4.  A FREE  PRESS  AN  INESTIMABLE  BLESSING. 

I am  well  aware,  that  by  the  communications  of  a free  press,  all 
the  errors  of  mankind,  from  age  to  age,  have  been  dissipated  and 
dispelled  ; and  I recollect  that  the  world,  under  the  banners  of  re- 
formed Christianity,  has  struggled  through  persecution  to  the  noble 
eminence  on  which  it  stands  at  this  moment  shedding  the  blessings 
of  humanity  and  science  upon  the  nations  of  the  earth.  It  may  be 
asked,  by  what  means  the  Reformation  would  have  been  effected  if 
the  books  of  the  reformers  had  been  suppressed,  and  the  errors  of 
condemned  and  exploded  superstitions  had  been  supported  as  un- 
questionable by  the  State,  founded  upon  those  very  superstitions 
formerly,  as  it  is  at  present  upon  the  doctrines  of  the  Established 
Church  ? or  how,  upon  such  principles,  any  reformation,  civil  or 
religious,  can  in  future  be  effected  ? The  solution  is  easy.  Let  us 
examine  what  are  the  genuine  principles  of  the  liberty  of  the  press, 
as  they  regard  writings  upon  general  subjects,  unconnected  with  the 
personal  reputations  of  private  men,  which  are  wholly  foreign  to 
the  present  inquiry.  They  are  full  of  simplicity,  and  are  brought 
as  near  perfection  by  the  law  of  England  as,  perhaps,  is  consistent 
with  any  of  the  frail  institutions  of  mankind. 

5.  The  principles  applicable  to  the  liberty  of  the  press. 

Although  every  community  must  establish  supreme  authorities, 
founded  upon  fixed  principles,  and  must  give  high  powers  to  mag- 
istrates to  administer  laws  for  the  preservation  of  the  government 
itself,  and  for  the  security  of  those  who  are  to  be  protected  by  it ; 
yet,  as  infallibility  and  perfection  belong  neither  to  human  estab- 
lishments nor  to  human  individuals,  it  ought  to  be  the  policy  of  all 
free  establishments,  as  it  is  most  peculiarly  the  principle  of  our  own 
Constitution,  to  permit  the  most  unbounded  freedom  of  discussion, 


558 


SPEECH  OF  THOMAS  ERSKINE 


even  by  detecting  errors  in  the  Constitution  or  administration  of 
the  very  government  itself,  so  as  that  decorum  is  observed  which 
every  State  must  exact  from  its  subjects,  and  which  imposes  no 
restraint  upon  any  intellectual  composition,  fairly,  honestly,  and 
decently  addressed  to  the  consciences  and  understandings  of  men. 
Upon  this  principle  I have  an  unquestionable  right — a right  which 
the  best  subjects  have  exercised — to  examine  the  principles  and 
structure  of  the  Constitution,  and  by  fair,  manly  reasoning,  to  ques- 
tion  the  practice  of  its  administrators.  I have  a right  to  consider 
and  to  point  out  errors  in  the  one  or  in  the  other ; and  not  merely 
to  reason  upon  their  existence,  but  to  consider  the  means  of  their 
reformation. 

By  such  free,  well-intentioned,  modest,  and  dignified  communi- 
cation of  sentiments  and  opinions,  all  nations  have  been  gradually 
improved,  and  milder  laws  and  purer  religions  have  been  established. 
The  same  principles  which  vindicate  civil  contentions,  honestly  di- 
rected, extend  their  protection  to  the  sharpest  controversies  on  re- 
ligious faiths.  This  rational  and  legal  course  of  improvement  was 
recognized  and  ratified  by  Lord  Kenyon  as  the  law  of  England,  in 
a late  trial  at  Guildhall,  when  he  looked  back  with  gratitude  to  the 
labors  of  the  reformers,  as  the  fountains  of  our  religious  emancipa- 
tion, and  of  the  civil  blessings  that  followed  in  their  train.  The 
English  Constitution,  indeed,  does  not  stop  short  in  the  toleration 
of  religious  opinions,  but  liberally  extends  it  to  practice.  It  per- 
mits every  man,  even  publicly,  to  worship  God  according  to  his 
own  conscience,  though  in  marked  dissent  from  the  national  estab- 
lishment, so  as  he  professes  the  general  faith,  which  is  the  sanction 
of  all  our  moral  duties,  and  the  only  pledge  of  our  submission  to 
the  system  which  constitutes  a State.  Is  not  this  system  of  free- 
dom of  controversy  and  freedom  of  worship,  sufficient  for  all  the 
purposes  of  human  happiness  and  improvement  ? and  will  it  be 
necessary  for  either  that  the  law  should  hold  out  indemnity  to  those 
who  wholly  abjure  and  revile  the  government  of  their  country,  or 
the  religion  on  which  it  rests  for  its  foundation  ? 

6e  Distinction  between  legitimate  inquiry  and  scurrilous 

ABUSE. 

I expect  to  hear,  in  answer  to  what  I am  now  saying,  much  that 
will  offend  me.  My  learned  friend,  from  the  difficulties  of  his  sit- 
uation— which  I know,  from  experience,  how  to  feel  for  very  sin- 
cerely— may  be  driven  to  advance  propositions  which  it  may  be  my 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


559 


duty,  with  much  freedom  to  reply  to  ; and  the  law  will  sanction 
that  freedom.  But  will  not  the  ends  of  justice  be  completely  an- 
swered by  the  right  to  point  out  the  errors  of  his  discourse  in  terms 
that  are  decent  and  calculated  to  expose  its  defects  ? or  will  any 
argument  suffer,  or  will  public  justice  be  impeded,  because  neither 
private  honor  and  justice,  nor  public  decorum,  would  endure  my 
telling  my  very  learned  friend  that  he  was  a fool,  a liar,  and  a scoun- 
drel, in  the  face  of  the  court,  because  I differed  from  him  in  argu- 
ment or  opinion  ? This  is  just  the  distinction  between  a book  of 
free  legal  controversy  and  the  book  which  I am  arraigning  before 
you.  Every  man  has  a legal  right  to  investigate,  with  modesty  and 
decency,  controversial  points  of  the  Christian  religion;  but  no  man, 
consistently  with  a law  which  only  exists  under  its  sanctions,  has  a 
right  not  only  broadly  to  deny  its  very  existence,  but  to  pour  forth 
a shocking  and  insulting  invective,  which  the  lowest  establishments 
in  the  gradations  of  civil  authority  ought  not  to  be  permitted  to 
suffer,  and  which  soon  would  be  borne  down  by  insolence  and  dis- 
obedience, if  they  did. 

7.  Illustrations  of  the  argument. 

The  same  principle  pervades  the  whole  system  of  the  law,  not 
merely  in  its  abstract  theory,  but  in  its  daily  and  most  applauded 
practice.  The  intercourse  between  the  sexes,  and  which,  properly 
regulated,  not  only  continues,  but  humanizes  and  adorns  our  na- 
tures, is  the  foundation  of  all  the  thousand  romances,  plays,  and 
novels  which,  are  in  the  hands  of  every  body.  Some  of  them  lead 
to  the  confirmation  of  every  virtuous  principle;  others,  though  with 
the  same  profession,  address  the  imagination  in  a manner  to  lead 
the  passions  into  dangerous  excesses.  But  though  the  law  does  not 
nicely  discriminate  the  various  shades  which  distinguish  these  works 
from  one  another,  so  as  that  it  suffers  many  to  pass,  through  its  lib- 
eral spirit,  that  upon  principle  might  be  suppressed,  would  it  or 
does  it  tolerate,  or  does  any  decent  man  contend  that  it  ought  to 
pass  by  unpunished,  libels  of  the  most  shameless  obscenity,  mani- 
festly pointed  to  debauch  innocence,  and  to  blast  and  poison  the 
morals  of  the  rising  generation  ? This  is  only  another  illustration 
to  demonstrate  the  obvious  distinction  between  the  works  of  an 
author  who  fairly  exercises  the  powers  of  his  mind  in  investigating 
doctrinal  points  in  the  religion  of  any  country,  and  him  who  at- 
tacks the  rational  existence  of  every  religion,  and  brands  with  ab- 


560 


SPEECH  OF  THOMAS  ERSKINE 


surdity  and  folly  the  State  which  sanctions,  and  the  obedient  tools 
who  cherish,  the  delusion. 

8.  Mischievous  and  cruel  effects  of  this  illegal  publi- 
cation. 

But  this  publication  appears  to  me  to  be  as  mischievous  and 
cruel  in  its  probable  effects,  as  it  is  manifestly  illegal  in  its  princi- 
ples; because  it  strikes  at  the  best,  sometime,  alas,  the  only  refuge 
and  consolation  amid  the  distresses  and  afflictions  of  the  world. 
The  poor  and  humble,  whom  it  affects  to  pity,  may  be  stabbed  to 
the  heart  by  it.  They  have  more  occasion  for  firm  hopes  beyond 
the  grave  than  those  who  have  greater  comforts  to  render  life  de- 
lightful. I can  conceive  a distressed,  but  virtuous  man,  surrounded 
by  children,  looking  up  to  him  for  bread  when  he  has  none  to  give 
them,  sinking  under  the  last  day’s  labor,  and  unequal  to  the  next, 
yet  still  looking  up  with  confidence  to  the  hour  when  all  tears  shall 
be  wiped  from  the  eyes  of  affliction,  bearing  the  burden  laid  upon 
him  by  a mysterious  Providence  which  he  adores,  and  looking  for- 
ward with  exultation  to  the  revealed  promises  of  his  Creator,  when 
he  shall  be  greater  than  the  greatest,  and  happier  than  the  happiest 
of  mankind.  What  a change  in  such  a mind  might  be  wrought  by 
such  a merciless  publication  ? 

Gentlemen,  whether  these  remarks  are  the  overcharged  declam- 
ations of  an  accusing  counsel,  or  the  just  reflections  of  a man  anx- 
ious for  the  public  freedom,  which  is  best  secured  hy  the  morals  of 
a nation,  will  be  best  settled  by  an  appeal  to  the  passages  in  the 
work,  that  are  selected  in  the  indictment  for  your  consideration  and 
judgment.  You  are  at  liberty  to  connect  them  with  every -context 
and  sequel,  and  to  bestow  upon  them  the  mildest  interpretation. 

Here  Mr.  Erskine  read  and  commented  upon  several  of  the  selected  pas- 
sages. He  continued ; 

9.  The  character  of  the  defense  an  anomaly,  and  incon- 
sistent WITH  THE  JURISDICTION  OF  THE  COURT. 

Gentlemen,  it  would  be  useless  and  disgusting  to  enumerate  the 
other  passages  within  the  scope  of  the  indictment.  How  any  man 
can  rationally  vindicate  the  publication  of  such  a book,  in  a coun- 
try where  the  Christian  religion  is  the  very  foundation  of  the  law  of 
the  land,  I am  totally  at  a loss  to  conceive,  and  have  no  wish  to 
discuss.  How  is  a tribunal,  whose  whole  jurisdiction  is  founded 
upon  the  solemn  belief  and  practice  of  what  is  denied  as  falsehood, 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


561 


and  reprobated  as  impiety,  to  deal  with  such  an  anomalous  defense? 
Upon  what  principle  is  it  even  offered  to  the  court,  whose  authority 
is  contemned  and  mocked  at  ? If  the  religion  proposed  to  be 
called  in  question  is  not  previously  adopted  in  belief,  and  solemnly 
acted  upon,  what  authority  has  the  court  to  pass  any  judgment  at 
all  of  acquittal  or  condemnation  ? Why  am  I now,  or  upon  any 
other  occasion,  to  submit  to  your  lordship’s  authority  ? Why  am  I 
now,  or  at  any  time,  to  address  twelve  of  my  equals,  as  I am  now 
addressing  you,  with  reverence  and  submission  ? Under  what  sanc- 
tion are  the  witnesses  to  give  their  evidence,  without  which  there 
can  be  no  trial  ? Under  what  obligations  can  I call  upon  you,  the 
jury,  representing  your  country,  to  administer  justice  ? Surely  upon 
no  other  than  that  you  are  sworn  to  administer  it  under  the  oaths 
you  have  taken.  The  whole  judicial  fabric,  from  the  king’s  sover- 
eign authority  to  the  lowest  office  of  magistracy,  has  no  other 
foundation.  The  whole  is  built,  both  in  form  and  substance,  upon 
the  same  oath  of  every  one  of  its  ministers,  to  do  justice,  “ as  God 
shall  help  them  hereafter.”  What  God  ? and  what  hereafter  ? That 
God,  undoubtedly,  who  has  commanded  kings  to  rule,  and  judges 
to  decree  with  justice;  who  has  said  to  witnesses,  not  by  the  voice 
of  nature,  but  in  revealed  commandments,  “ thou  shalt  not  bear 
false  witness  against  thy  neighbor;  ” and  who  has  enforced  obe- 
dience to  them  by  the  revelation  of  the  unutterable  blessings  which 
shall  attend  their  observances,  and  the  awful  punishments  which 
shall  await  upon  their  transgressions. 

lo.  Intellectual  superiority  of  Christian  believers. — 

Newton. 

But  it  seems  this  course  of  reason,  and  the  time  and  the  person 
are  at  last  arrived,  that  are  to  dissipate  the  errors  which  have  over- 
spread the  past  generations  of  ignorance!  The  believers  in  Chris- 
tianity are  many,  but  it  belongs  to  the  few  that  are  wise  to  correct 
their  credulity!  Belief  is  an  act  of  reason;  and  superior  reason 
may,  therefore,  dictate  to  the  weak.  In  running  the  mind  along 
the  numerous  list  of  sincere  and  devout  Christians,  I cannot  help 
lamenting  that  Newton  had  not  lived  to  this  day,  to  have  had  his 
shallowness  filled  up  with  this  new  flood  of  light.  But  the  subject 
is  too  awful  for  irony.  I will  speak  plainly  and  directly.  Newton 
was  a Christian!  Newton,  whose  mind  burst  forth  from  the  fetters 
cast  by  nature  upon  our  finite  conceptions;  Newton,  whose  science 
was  truth,  and  the  foundation  of  whose  knowledge  of  it  was  philos- 
36 


502 


SPEECH  OF  THOMA.S  ERSKINE 


ophy.  Not  those  visionary  and  arrogant  assumptions  which  too 
often  usurp  its  name,  but  philosophy  resting  upon  the  basis  of 
mathematics,  which,  like  figures,  cannot  lie.  Newton,  who  carried 
the  line  and  rule  to  the  utmost  barriers  of  creation,  and  explored 
the  principles  by  which,  no  doubt,  all  created  matter  is  held  togeth- 
er and  exists.  But  this  extraordinary  man,  in  the  mighty  reach  of 
his  mind,  overlooked,  perhaps,  the  errors  which  a minuter  investi- 
gation of  the  created  things  on  this  earth  might  have  taught  him  of 
the  essence  of  his  Creator. 

II.  Boyle,  Locke,  and  Sir  Matthew  Hale. 

What  shall  then  be  said  of  the  great  Mr.  Boyle,  who  looked  into 
he  organic  structure  of  all  matter,  even  to  the  brute  inanimate 
Aubstances  which  the  foot  treads  on.  Such  a man  may  be  sup- 
posed to  have  been  equally  qualified  with  Mr.  Paine,  to  “look 
through  nature,  up  to  nature’s  God.”  Yet  the  result  of  all  his  con- 
templation was  the  most  confirmed  and  devout  belief  in  all  which 
the  other  holds  in  contempt  as  despicable  and  driveling  supersti- 
tion. But  this  error  might,  perhaps,  arise  from  a want  of  due  at- 
tention to  the  foundations  of  human  judgment,  and  the  structure 
of  that  understanding  which  God  has  given  us  for  the  investigation 
of  truth.  Let  that  question  be  answered  by  Mr.  Locke,  who  was 
to  the  highest  pitch  of  devotion  and  adoration  a Christian.  Mr 
Locke,  whose  office  was  to  detect  the  errors  of  thinking,  by  going  up 
to  the  fountains  of  thought,  and  to  direct  into  the  proper  track  of 
reasoning  the  devious  mind  of  man,  by  showing  him  its  whole  pro- 
cess, from  the  first  perceptions  of  sense  to  the  last  conclusions  of 
ratiocination;  putting  a rein,  besides,  upon  false  opinion,  by  prac- 
tical rules  for  the  conduct  of  human  judgment. 

But  these  men  were  only  deep  thinkers,  and  lived  in  their  closets, 
unaccustomed  to  the  traffic  of  the  world,  and  to  the  laws  which 
practically  regulate  mankind.  Gentlemen,  in  the  place  where  you 
now  sit  to  administer  the  justice  of  this  great  country,  above  a cen- 
tury ago  the  never-to-be-forgotten  Sir  Matthew  Hale  presided, 
whose  faith  in  Christianity  is  an  exalted  commentary  upon  its  truth 
and  reason,  and  whose  life  was  a glorious  example  of  its  fruits  in 
man;  administering  human  justice  with  a wisdom  and  purity  drawn 
from  the  pure  fountain  of  the  Christian  dispensation,  which  has 
been,  and  will  be,  in  all  ages,  a subject  of  the  highest  reverence 
and  admiration. 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


56a 


12.  John  Milton’s  immortal  offering. 

But  it  is  said  by  Mr.  Paine,  that  the  Christian  fable  is  but  the 
tale  of  the  more  ancient  superstitions  of  the  world,  and  may  be 
easily  detected  by  a proper  understanding  of  the  mythologies  of 
the  heathens.  Did  Milton  understand  those  mythologies  ? Was 
he  less  versed  than  Mr.  Paine  in  the  superstitions  of  the  world  ? 
No;  they  were  the  subject  of  his  immortal  song;  and  though  shut 
out  from  all  recurrence  to  them,  he  poured  them  forth  from  the 
stores  of  a memory  rich  with  all  that  man  ever  knew,  and  laid  them 
in  their  order  as  the  illustration  of  that  real  and  exalted  faith,  the 
unquestionable  source  of  that  fervid  genius,  which  cast  a sort  of 
shade  upon  all  the  other  works  of  man: 

He  pass’d  the  bounds  of  flaming  space, 

Where  angels  tremble  while  they  gaze; 

He  saw,  til],  blasted  with  excess  of  light, 

He  clos’d  his  eyes  in  endless  night! ' 

But  it  was  the  light  of  the  body  only  that  was  extinguished; 
^‘the  celestial  light  shone  inward,”  and  enabled  him  to  “justify the 
ways  of  God  to  man.”  The  result  of  his  thinking  was,  neverthe- 
less, not  the  same  as  Mr.  Paine’s.  The  mysterious  incarnation  of 
our  blessed  Saviour,  which  the  “ Age  of  Reason  ” blasphemes  in 
words  so  wholly  unfit  for  the  mouth  of  a Christian,  or  for  the  ear 
of  a court  of  justice,  that  I dare  not  and  will  not  give  them  utter- 
ance, Milton  made  the  grand  conclusion  of  “ Paradise  Lost,”  the 
rest  of  his  finished  labors,  and  the  ultimate  hope,  expectation,  and 
glory  of  the  world: 

A Virgin  is  his  mother,  but  his  sire 

The  power  of  the  Most  High;  he  shall  ascend 

The  throne  hereditary,  and  bound  his  reign 

With  earth’s  wide  bounds,  his  glory  with  the  heavens. 

The  immortal  poet  having  thus  put  into  the  mouth  of  the  angel 
the  prophecy  of  man’s  redemption,  follows  it  with  that  solemn  and 
beautiful  admonition,  addressed  in  the  poem  to  our  great  First 
Parent,  but  intended  as  an  address  to  his  posterity  through  all  gen- 
erations: 

This  having  learned,  thou  hast  attained  the  sum 
Of  wisdom:  hope  no  higher,  though  all  the  stars 
Thou  knew’st  by  name,  and  all  th’  ethereal  powers, 

^ Grey’s  Ode  on  the  Progress  of  Poetry. 


564: 


SPEECH  OF  THOMAS  ERSKINE 


All  secrets  of  the  deep,  all  Nature’s  works, 

Or  works  of  God  in  heaven,  air,  earth,  or  sea; 

And  all  the  riches  of  this  world  enjoy’st. 

And  all  the  rule  one  empire ; only  add 
Deeds  to  thy  knowledge  answerable,  add  faith, 

Add  virtue,  patience,  temperance;  add  love. 

By  name  to  come  call’d  Charity,  the  soul 
Of  all  the  rest;  then  wilt  thou  not  be  loth 
To  leave  this  Paradise,  but  shalt  possess 
A paradise  within  thee,  happier  far. 

Thus  you  find  all  that  is  great,  or  wise,  or  splendid,  or  illus- 
trious among  created  beings — all  the  minds  gifted  beyond  ordinary 
nature,  if  not  inspired  by  their  universal  Author  for  the  advance- 
ment and  dignity  of  the  world,  though  divided  by  distant  ages,  and 
by  the  clashing  opinions  distinguishing  them  from  one  another,  yet 
joining,  as  it  were,  in  one  sublime  chorus  to  celebrate  the  truths  of 
Christianity,  and  laying  upon  its  holy  altars  the  never-fading  offer- 
ings of  their  immortal  wisdom, 

13.  Adherence  to  doctrines  of  the  New  Testament  would 

BANISH  WICKEDNESS  FROM  THE  WORLD. 

Against  all  this  concurring  testimony,  we  find  suddenly,  from 
Mr,  Paine,  that  the  Bible  teaches  nothing  but  lies,  obscenity, 
cruelty,  and  injustice,”  Did  the  author  or  publisher  ever  read  the 
sermon  of  “ Christ  upon  the  Mount,”  in  which  the  great  principles 
of  our  faith  and  duty  are  summed  up  ? Let  us  all  but  read  and 
practice  it,  and  lies,  obscenity,  cruelty,  and  injustice,  and  all  human 
wickedness,  would  be  banished  from  the  world. 

14.  Religion  and  morality  alone  constitute  the  safety 

OF  THE  State. 

Gentlemen,  there  is  but  one  consideration  more,  which  I cannot 
possibly  omit,  because,  I confess,  it  affects  me  very  deeply.  Mr. 
Paine  has  written  largely  on  public  liberty  and  government;  and 
this  last  performance  has,  on  that  account,  been  more  widely  circu- 
lated, and  principally  among  those  who  attached  themselves  from 
principle  to  his  former  works.  This  circumstance  renders  a public 
attack  upon  all  revealed  religion,  from  such  a writer,  infinitely  more 
dangerous.  The  religious  and  moral  sense  of  the  people  of  Great 
Britain  is  the  great  anchor  which  alone  can  hold  the  vessel  of  the 
State  amid  the  storms  which  agitate  the  world.  If  I could  believe, 
for  a moment,  that  the  mass  of  the  people  were  to  be  debauched 


ON  THE  TRIAL  OF  THOMAS  WILLIAMS. 


565 


from  the  principles  of  religion,  which  form  the  true  basis  of  that 
humanity,  charity,  and  benevolence  that  has  been  so  long  the  na- 
tional characteristic,  instead  of  mixing  myself,  as  I sometimes  have 
done,  in  political  reformations,  I would  rather  retire  to  the  utter- 
most corners  of  the  earth  to  avoid  their  agitation ; and  would  bear, 
not  only  the  imperfections  and  abuses  complained  of  in  our  own 
wise  establishment,  but  even  the  worst  government  that  ever  ex- 
isted in  the  world,  rather  than  go  to  the  work  of  reformation  with  a 
multitude  set  free  from  all  the  charities  of  Christianity,  who  had  no 
sense  of  God’s  existence  but  from  Mr.  Paine’s  observation  of  na- 
ture, which  the  mass  of  mankind  have  no  leisure  to  contemplate; 
nor  any  belief  of  future  rewards  and  punishments  to  animate  the 
good  in  the  glorious  pursuit  of  human  happiness,  nor  to  deter  the 
wicked  from  destroying  it  even  in  its  birth.  But  I know  the  people 
of  England  better.  They  are  a religious  people;  and,  with  the 
blessing  of  God,  as  far  as  it  is  in  my  power,  I will  lend  my  aid  to 
keep  them  so.  I have  no  objection  to  the  freest  and  most  extended 
discussions  upon  doctrinal  points  of  the  Christian  religion;  and, 
though  the  law  of  England  does  not  permit  it,  I do  not  dread  the 
reasoned  arguments  of  Deists  against  the  existence  of  Christianity 
itself,  because,  as  was  said  by  its  divine  author,  if  it  is  of  God  it 
will  stand. 

15.  Inferior  object  and  capacity  of  Paine’s  work. 

An  intellectual  book,  however  erroneous,  addressed  to  the  intel- 
lectual world  upon  so  profound  and  complicated  a subject,  can 
never  work  the  mischief  which  this  indictment  is  calculated  to  re- 
press. Such  works  will  only  employ  the  minds  of  men  enlightened 
by  study  in  a deeper  investigation  of  a subject  well  worthy  of  their 
profound  and  continued  contemplation.  The  powers  of  the  mind 
are  given  for  human  improvement  in  the  progress  of  human  exist- 
ence. The  changes  produced  by  such  reciprocations  of  lights  and 
intelligences  are  certain  in  their  progressions,  and  make  their  way 
imperceptibly,  as  conviction  comes  upon  the  world,  by  the  final  and 
irresistible  power  of  truth.  If  Christianity  be  founded  in  falsehood, 
let  us  become  Deists  in  this  manner,  and  I am  contented.  But  this 
book  hath  no  such  object  and  no  such  capacity;  it  presents  no  ar- 
guments to  the  wise  and  enlightened.  On  the  contrary,  it  treats 
the  faith  and  opinions  of  the  wisest  with  the  most  shocking  con- 
tempt, and  stirs  up  men  without  the  advantages  of  learning  or  sober 
thinking  to  a total  disbelief  of  everything  hitherto  held  sacred,  and, 


566 


SPEZCH  OF  THOMAS  ERSKINE. 


consequently,  to  a rejection  of  all  the  laws  and  ordinances  of  the 
State,  which  stand  only  upon  the  assumption  of  their  truth. 

Gentlemen,  I cannot  conclude  without  expressing  the  deepest 
regret  at  all  attacks  upon  the  Christian  religion  by  authors  who 
profess  to  promote  the  civil  liberties  of  the  world.  For  under  what 
other  auspices  than  Christianity  have  the  lost  and  subverted  liber- 
ties of  mankind  in  former  ages  been  reasserted  ? By  what  zeal,  but 
the  warm  zeal  of  devout  Christians,  have  English  liberties  been  re- 
deemed and  consecrated?  Under  what  other  sanctions,  even  in 
our  own  days,  have  liberty  and  happiness  been  extending  and 
spreading  to  the  uttermost  corners  of  the  earth  ? What  work  of 
civilization,  what  commonwealth  of  greatness  has  the  bald  religion 
of  nature  ever  established  ? We  see,  on  the  contrary,  the  nations 
that  have  no  other  light  than  that  of  nature  to  direct  them,  sunk  in 
barbarism,  or  slaves  to  arbitrary  governments  ; while,  since  the 
Christian  era,  the  great  career  of  the  world  has  been  slowly,  but 
clearly,  advancing  lighter  at  every  step,  from  the  awful  prophecies 
of  the  Gospel,  and  leading,  I trust,  in  the  end,  to  universal  and 
eternal  happiness.  Each  generation  of  mankind  can  see  but  a few 
revolving  links  of  this  mighty  an^  mysterious  chain;  but,  by  doing 
our  several  duties  in  our  allotted  stations,  we  are  sure  that  we  are 
fulfilling  the  purposes  of  our  existence.  You,  I trust,  will  fulfill 
yours  this  day! 


The  evidence  was  very  brief.  The  sale  of  the  book  by  the  prisoner  was 
shown,  the  notice  by  the  defense  to  produce  the  Bible  in  evidence  was  read,  and 
the  prosecution  rested.  Mr.  Kyd  then  delivered  an  address  to  the  jury,  to  which 
Mr.  Erskine  replied.  He  closed  his  speech  as  follows:  “I  have  only,  therefore, 
to  remind  you,  gentlemen,  that  this  indictment  was  not  preferred  from  any  idea 
that  the  Christian  religion  could  be  affected,  in  its  character  or  irresistible  pro- 
gress, by  this  disgusting  and  contemptible  work;  but  to  prevent  its  circulation 
amongst  the  industrious  poor,  too  much  engaged  in  the  support  of  their  families 
by  their  labor,  and  too  uninformed  to  be  secure  against  artful  wickedness.  Of 
all  human  beings  they  stand  most  in  need  of  the  consolations  of  religion,  and  the 
country  has  the  deepest  stake  in  their  enjoying  it,  not  only  from  the  protection 
which  it  owes  them,  but  because  no  man  ,can  be  expected  to  be  faithful  to  the 
authority  of  man  who  revolts  against  the  government  of  God.”  The  jury  found 
a verdict  of  Guilty,  without  retiring  from  their  seats. 


SPEECH  OE  SIR  JAMES  MACKINTOSH 


In  Behalf  of  Jean  Peltier,  Indicted  for  a Libel  against 
Napoleon  Bonaparte. 

•^Howell’s  St.  Tr.  vol.  28,  p. 


IN  THE  COURT  OF  KING’S  BENCH.  MICHAELMAS  TERM, 
43d  GEORGE  HI,  FEB.  21,  1803. 


Political  Libel. — Every  publication  which  has  a tendency  to  pro- 
mote public  mischief  by  defaming  the  persons  and  characters  of  magis- 
trates, and  others  in  high  and  eminent  situations  of  power  and  dignity  in 
other  countries,  inconsistent  with  amity  and  friendship,  expressed  in  such 
terms  and  such  a manner  as  to  interrupt  the  amity  and  friendship  between 
the  two  countries,  is  in  law  a libel. — [Lord  Ellenborough’s  charge  in  Rex 
V.  Peltier.] 


Analysis  of  Me.  Mackintosh’s  Speech. 


1.  The  nominal  parties  to  the  record,  not 

the  real  parties  to  the  issue. 

2.  The  real  issue— a conflict  between  the 

greatest  power  in  the  world,  and  the 
only  free  pros  in  Europe. 

3.  Reason  for  the  temporary  toleration  of  a 

free  press  in  the  minor  European 
States. 

4.  How  the  liberty  of  the  continental  press 

perished,  while  the  press  of  England 
alone  remained  free. 

5.  Distinction  between  libel  and  history  — 

Philosophy  of  the  law  ot  libel. 

6.  The  Maintenance  of  justice  on  the  con- 

tinent essential  to  the  security  of 
Great  Britain. 

7.  War  never  beneficial  to  a commercial 

nation. 

8.  The  freedom  of  the  press  cannot  be  im- 

paired without  danger  to  the  State. 

9.  Malice  the  essence  of  the  crime  of  libel. 

— The  privilege  of  the  historian. 

10.  A satire  not  a libel. 

11.  Defend  . nt  had  a legal  right  to  satirize 

Jacobinism. 

12.  The  spirit  of  Jacobinism  not  extinguish- 

ed. 

13.  A picture  of  the  French  Jacobins. 

14.  Republicans  and  Jacobins  distinguished. 


15.  The  publication  cannot  represent  the 

opinions  of  th.e  defendant,  who  is  a 
royalist. 

16.  Observations  upon  the  ode. 

17.  The  verses  contain  no  exhortation  to  as- 

sassinate Napoleon. 

18.  Free  discussion  the  most  important  in- 

terest of  mankind.  — The  reign  of 
Elizabeth. 

19.  Power  and  importance  of  the  press  in 

preserving  the  liberties  of  English- 
men. 

20.  Louis  XIV. — His  arraignment  by  French 

refugees  no  libel. 

21.  The  invasion  of  Holland  an  avowed  at- 

tack upon  the  liberty  of  the  press. 

22.  William  of  Orange  saves  England  from 

the  power  of  Louis  XIV. 

23.  Animadversion  of  the  English  press  on 

the  projects  of  Louis  XIV. 

24.  Influence  of  newspapers  on  domestic  and 

foreign  politics. 

25.  Arraignment  by  the  press  of  the  crime 

against  Poland. 

26.  The  invasion  of  Switzerland. — England 

an  asylum  for  its  oppressed  heroes. 

27.  The  reign  of  Robespierre. — Illustrations 

to  show  the  fallacy  of  the  theory  of 
the  prosecution. 

[567] 


568 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


On  the  2 1st  of  February,  1803,  Jean  Peltier  was  brought  up  for  trial,  charged 
with  having  published  a wicked  and  malicious  libel  against  Napoleon  Bonaparte 
(at  that  time  First  Consul  and  Chief  Magistrate  of  France),  with  the  intent  and 
purpose  of  bringing  him  into  hatred  and  contempt  at  home  and  abroad;  to  incite 
his  subjects  to  rebel  against  him;  and,  further,  for  the  purpose  of  exhorting  his 
assassination. 

Mr.  Peltier  was  a French  royalist,  who,  in  the  memorable  autumn  of  1792, 
fled  from  his  country  on  account  of  political  persecution.  In  1S02,  he  com- 
menced the  publication  of  a French  journal  in  the  city  of  London,  entitled 
1! Ambigu,  ou  Varietes  atroces  et  amusantes.  On  the  title  page  was  the  repre- 
sentation of  a Sphynx,  with  a head  representing  Bonaparte,  wearing  a crown. 
A number  of  hieroglyphics  were  engraven  on  the  pedestal  on  which  it  rested, 
indicative  of  mystery.  The  columns  of  L’Ambi^u  were  devoted  to  an  exposure 
of  the  conduct,  designs  and  ambitions  of  Napoleon.  The  publication  irritated 
the  First  Consul  to  such  a degree  that  he  demanded  of  the  English  authorities 
that  Peltier  be  sent  out  of  the  country,  but  his  solicitations  were  refused.  He 
then  insisted  that  as  France  was  at  peace  with  England,  the  king  should  pro- 
ceed against  Peltier  for  a libel  on  a friendly  government,  which  was,  by  the  laws 
of  England,  a crime  to  which  severe  penalties  attached. 

There  appeared  in  the  first  number  of  L' Ambigu  an  ode,  attributed  to  Chen- 
ier (a  Jacobin,  and  a man  of  distinguished  talents),  which  hinted  at  the  assas- 
sination of  Bonaparte.  It  also  contained  some  verses  of  the  same  character, 
entitled,  “ The  Wish  of  a Dutch  Patriot.”'  The  third  number  contained  a parody 
on  the  harangue  of  Lepidus  to  Sylla,  which  pointed  at  Bonaparte  as  having  as- 
sumed the  dictatorship.  These  three  articles  were  set  out  in  the  indictment,  and 
embraced  the  charge  on  which  Peltier  was  arraigned. 

Pie  was  defended  by  Sir  James  Mackintosh.  The  time  when  the  trial  oc- 
curred, and  the  peculiar  circumstances  under  which  it  took  place,  afforded  Mr. 
Mackintosh  an  opportunity  to  display  the  abilities  with  which  he  was  so  liberally 
endowed.  Such  was  the  nature  and  importance  of  the  affair,  that,  during  the 
week  preceding  the  trial,  it  was  believed  in  commercial  circles  that  the  acquittal 
of  Peltier  would  be  considered  in  France  as  tantamount  to  a declaration  of  war 
against  the  First  Consul;  and  such  was  the  feverish  and  uncertain  tenure  of 
the  peace  between  the  two  countries,  that  war  was  actually  declared  before  the 
prisoner  (who  was  convicted)  was  brought  up  for  sentence. 

Mr.  Mackintosh’s  defense  of  Peltier  must  always  rank  as  a model  of  chaste 
and  manly  eloquence,  which,  as  a display  of  intellectual  power,  has  not  been 
surpassed  in  ancient  or  modern  times.  The  vigor  of  thought  and  the  wonderful 
exhibition  of  memory  which  characterize  this  great  speech,  demonstrate  that 
Lord  Macaulay  did  not  place  too  high  an  estimate  on  the  abilities  of  this  eminent 
Scotchman  when  he  said  : “ His  m'nd  was  a vast  magazine,  admirably  arranged. 
Everything  was  there,  and  everything  was  in  its  place.  His  judgments  on  men, 
on  sects,  on  books,  had  been  often  carefully  tested  and  weighed,  and  had  thea 
been  committed,  each  to  his  proper  receptacle,  in  the  most  capacious  and  admir. 
ably  constructed  memory  that  any  human  being  ever  possessed.  While  speaking, 
he  seemed  to  be  recollecting,  not  creating.  You  never  saw  his  opinions  in  the 
making,  still  rude,  still  inconsistent,  and  requiring  to  be  fashioned  by  thought 


* For  the  Ode  and  Verses,  see  Appendix,  pp.  730,  73*' 


IX  BEHALF  OF  JEAX  PELTIER. 


569 


and  discussion.  They  came  forth  like  the  pillars  of  that  temple,  in  which  no 
sound  of  axes  or  hammers  was  heard,  finished,  rounded,  and  exactly  suited  to 
their  places.”  Lord  Erskine,  who  was  present  during  Mr.  Mackintosh’s  address, 
wrote  to  him  that,  while  he  approved  the  verdict,  he  should  always  consider  the 
manner  in  which  it  was  opposed  as  one  of  the  most  splendid  monuments  of 
genius,  literature  and  eloquence ; and  Robert  Hall,  in  acknowledging  the  receipt 
of  a copy  of  it  from  Mr.  Mackintosh,  remarked  that  it  was  “the  most  extraor- 
dinary assemblage  of  whatever  is  most  refined  in  address,  profound  in  political 
and  moral  speculation,  and  masterly  in  eloquence  in  the  language.”  Madame  de 
Stael  was  charmed  with  its  fine  passages,  which  she  said  seemed  to  touch  her 
very  soul.  She  translated  it  into  French,  and  it  became  widely  known  on  the 
continent. 

The  attorney-general  (Mr.  Percival,  afterwards  Prime  Minister)  opened  the 
case  to  the  jury.  No  evidence  was  offered  by  the  prisoner.  When  the  testi- 
mony for  the  crown  closed,  Mr.  Mackintosh  said  : 

Gentlemen  of  the  Jury  : — The  time  is  now  come  for  me  to 
address  you  in  behalf  of  the  unfortunate  gentleman  who  is  the  de- 
fendant on  this  record. 

I must  begin  with  observing,  that  though  I know  myself  too 
well  to  ascribe  to  anything  but  to  the  kindness  and  good  nature  of 
my  learned  friend,  the  attorney-general,  the  unmerited  praises 
which  he  has  been  pleased  to  bestow  on  me,  yet,  I will  venture  to 
say,  he  has  done  me  no  more  than  justice  in  supposing  that  in  this 
place,  and  on  this  occasion,  where  I exercise  the  functions  of  an 
inferior  minister  of  justice,  an  inferior  minister,  indeed,  but  a 
minister  of  justice  still,  I am  incapable  of  lending  myself  to  the 
passions  of  any  client,  and  that  I will  not  make  the  proceedings  of 
this  court  subservient  to  any  political  purpose. 

Whatever  is  respected  by  the  laws  and  government  of  my  coun- 
try shall,  in  this  place,  be  respected  by  me.  In  considering  matters 
that  deeply  interest  the  quiet,  the  safety,  and  the  liberty  of  all  man- 
kind, it  is  impossible  for  me  not  to  feel  warmly  and  strongly  ; but 
I shall  make  an  effort  to  control  my  feelings,  however  painful  that 
effort  may  be  ; and,  where  I cannot  speak  out,  but  at  the  risk  of 
offending  either  sincerity  or  prudence,  I shall  labor  to  contain  my- 
self and  be  silent. 

I cannot  but  feel,  gentlemen,  how  much  I stand  in  need  of  your 
favorable  attention  and  indulgence.  The  charge  which  I have  to 
defend  is  surrounded  with  the  most  invidious  topics  of  discussion  ; 
but,  they  are  not  of  my  seeking.  The  case  and  the  topics  which 
are  inseparable  from  it  are  brought  here  by  the  prosecutor.  Here 
1 find  them,  and  here  it  is  my  duty  to  deal  with  them,  as  the  inter, 
ests  of  Mr.  Peltier  seem  to  me  to  require.  He  bv  his  choice  and 


670 


SPEECH  OF  SIR  JAMIES  MACKINTOSH 


confidence,  has  cast  on  me  a very  arduous  duty,  which  I could  ncTt 
decline,  and  which  I can  still  less  betray.  He  has  a right  to  expect 
from  me  a faithful,  a zealous,  and  a fearless  defense  ; and  this,  his 
just  expectation,  according  to  the  measure  of  my  humble  abilities, 
shall  be  fulfilled. 

I have  said  a fearless  defense.  Perhaps  that  word  was  unneces- 
sary in  the  place  where  I now  stand.  Intrepidity  in  the  discharge 
of  professional  duty  is  so  common  a quality  at  the  English  bar, 
that  it  has,  thank  God,  long  ceased  to  be  a matter  of  boast  or 
praise.  If  it  had  been  otherwise,  gentlemen,  if  the  bar  could  have 
been  silenced  or  overawed  by  power,  I may  presume  to  say  that  an 
English  jury  would  not  this  day  have  been  met  to  administer  jus- 
tice. Perhaps  I need  scarce  say  that  my  defense  shall  be  fearless, 
in  a place  where  fear  never  entered  any  heart  but  that  of  a crim- 
inal. But  you  will  pardon  me  for  having  said  so  much  when  you 
consider  who  the  real  parties  before  you  are. 

I.  The  nominal  parties  to  the  record,  not  the  real 

PARTIES  TO  THE  ISSUE. 

Gentlemen,  the  real  prosecutor  is  the  master  of  the  greatest  em- 
pire the  world  ever  saw.  The  defendant  is  a defenseless,  pro- 
scribed exile.  He  is  a French  royalist,  who  fled  from  his  country 
in  the  autumn  of  1792,  at  the  period  of  that  memorable  and  awful 
emigration,  when  all  the  proprietors  and  magistrates  of  the  greatest 
civilized  country  of  Europe  were  driven  from  their  homes  by  the 
daggers  of  assassins:  when  our  shores  were  covered,  as  with  the 
wreck  of  a great  tempest,  with  old  men,  and  women,  and  children, 
and  ministers  of  religion,  who  fled  from  the  ferocity  of  their  coun- 
trymen as  before  an  army  of  invading  barbarians. 

The  greatest  part  of  these  unfortunate  exiles,  of  those,  I mean, 
who  have  been  spared  by  the  sword,  who  have  survived  the  effect 
of  pestilential  climates  or  broken  hearts,  have  been  since  permitted 
to  revisit  their  country.  Though  despoiled  of  their  all,  they  have 
eagerly  embraced  even  the  sad  privilege  of  being  suffered  to  die  in 
their  native  land. 

Even  this  miserable  indulgence  was  to  be  purchased  by  compli- 
ances, by  declarations  of  allegiance  to  the  new  government,  which 
some  of  these  suffering  Royalists  deemed  incompatible  with  their 
consciences,  with  their  dearest  attachments,  and  their  most  sacred 
duties.  Among  these  last  is  Mr  Peltier.  I do  not  presume  to 
blame  those  who  submitted,  and  I trust  you  will  no^  judge  harshly 


IN  BEHALF  OF  JEAN  PELTIER. 


571 


of  those  who  refused.  You  will  not  think  unfavorably  of  a man 
who  stands  before  you  as  the  voluntary  victim  of  his  loyalty  and 
honor.  If  a revolution  (which  God  avert)  were  to  drive  us  into 
exile,  and  to  cast  us  on  a foreign  shore,  we  should  expect,  at  least, 
to  be  pardoned  by  generous  men,  for  stubborn  loyalty,  and  unsea- 
sonable fidelity  to  the  laws  and  government  of  our  fathers. 

This  unfortunate  gentleman  had  devoted  a great  part  of  his  life 
to  literature.  It  was  the  amusement  and  ornament  of  his  better 
days.  Since  his  own  ruin  and  the  desolation  of  his  country,  he  has 
been  compelled  to  employ  it  as  a means  of  support.  For  the  last 
ten  years  he  has  been  engaged  in  a variety  of  publications  of  con- 
siderable importance;  but  since  the  peace,  he  has  desisted  from 
serious  political  discussion,  and  confined  himself  to  the  obscure 
journal  which  is  now  before  you;  the  least  calculated,  surely,  of  any 
publication  that  ever  issued  from  the  press,  to  rouse  the  alarms  of 
the  most  jealous  government;  which  will  not  be  read  in  England, 
because  it  is  not  written  in  our  language;  which  cannot  be  read  in 
France,  because  its  entry  into  that  country  is  prohibited  by  a power 
whose  mandates  are  not  very  supinely  enforced,  nor  often  evaded 
with  impunity;  which  can  have  no  other  object  than  that  of  amusing 
the  companions  of  the  author’s  principles  and  misfortunes,  by  pleas- 
antries and  sarcasms  on  their  victorious  enemies.  There  is,  indeed, 
gentlemen,  one  remarkable  circumstance  in  this  unfortunate  publi- 
cation; it  is  the  only,  or  almost  the  only  journal  which  still  dares 
to  espouse  the  cause  of  that  royal  and  illustrious  family,  which,  but 
fourteen  years  ago,  was  flattered  by  every  press  and  guarded  by 
every  tribunal  in  Europe.  Even  the  court  in  which  we  are  met 
affords  an  example  of  the  vicissitudes  of  their  fortune.  My  learned 
friend  has  reminded  you  that  the  last  prosecution  ^ tried  in  this 
place,  at  the  instance  of  a French  government,  was  for  a libel  on 
that  magnanimous  princess,  who  has  since  been  butchered  in  sight 
of  her  palace. 

I do  not  make  these  observations  with  any  purpose  of  question- 
ing the  general  principles  which  have  been  laid  down  by  my  learned 
friend.  I must  admit  his  right  to  bring  before  you  those  who  libel 
any  government  recognized  by  his  Majesty,  and  at  peace  with  the 
British  empire.  I admit  that,  whether  such  a government  be  of  yes- 
terday, or  a thousand  years  old;  whether  it  be  a crude  and  bloody 
usurpation,  or  the  most  ancient,  just,  and  paternal  authority  upon 
earth,  we  are  here  equally  bound,  by  his  Majesty’s  recognition,  to 
protect  it  against  libelous  attacks. 

* The  prosecution  of  Lord  George  Gordon. 


572 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


I admit  that  if,  during  our  usurpation,  Lord  Clarendon  had  pub- 
lished his  history  at  Paris,  or  the  Marquess  of  Montrose  his  verses 
on  the  murder  of  his  sovereign,  or  Mr.  Cowley  his  Discourse  on 
Cromwell’s  Government,  and  if  the  English  embassador  had  com- 
plained, the  President  de  Moli,  or  any  other  of  the  great  magis- 
trates  who  then  adorned  the  Parliament  of  Paris,  however  reluct- 
antly, painfully,  and  indignantly,  might  have  been  compelled  to 
have  condemned  these  illustrious  men  to  the  punishment  of 
libelers. 

I say  this  only  for  the  sake  of  bespeaking  a favorable  attention 
from  your  generosity,  and  compassion  to  what  will  be  feebly  urged 
in  behalf  of  my  unfortunate  client,  who  has  sacrificed  his  fortune, 
his  hopes,  his  connections,  his  country,  to  his  conscience ; who 
seems  marked  out  for  destruction  in  this  his  last  asylum. 

That  he  still  enjoys  the  security  of  this  asylum,  that  he  has  not 
been  sacrificed  to  the  resentment  of  his  powerful  enemies,  is  perhaps 
owing  to  the  firmness  of  the  king’s  government.  If  that  be  the  fact, 
gentlemen;  if  his  Majesty’s  ministers  have  resisted  applications  to 
expel  this  unfortunate  gentleman  from  England,  I should  publicly 
thank  them  for  their  firmness,  if  it  were  not  unseemly  and  improper 
to  suppose  that  they  could  have  acted  otherwise — to  thank  an 
English  government  for  not  violating  the  most  sacred  duties  of 
hospitality;  for  not  bringing  indelible  disgrace  on  their  country. 

But  be  that  as  it  may,  gentlemen,  he  now  comes  before  you  per- 
fectly satisfied  that  an  English  jury  is  the  most  refreshing  prospect 
that  the  eye  of  accused  innocence  ever  met  in  a human  tribunal; 
and  he  feels  with  me  the  most  fervent  gratitude  to  the  Protector 
of  empires  that,  surrounded  as  we  are  with  the  ruins  of  principali- 
ties and  powers,  we  still  continue  to  meet  together,  after  the  manner 
of  our  fathers,  to  administer  justice  in  this  her  ancient  sanctuary. 

2.  The  real  issue — a conflict  between  the  greatest  power 

IN  THE  WORLD,  AND  THE  ONLY  FREE  PRESS  IN  EuROPE. 

There  is  another  point  of  view  in  which  this  case  seems  to  me 
to  merit  your  most  serious  attention.  I consider  it  as  the  first  of 
a long  series  of  conflicts  between  the  greatest  power  in  the  world, 
and  the  only  free  press  remaining  in  Europe. 

No  man  living  is  more  thoroughly  convinced  than  I am  that  my 
fearned  friend,  Mr.  Attorney  General,  will  never  degrade  his  excel- 
lent character  ; that  he  will  never  disgrace  his  high  magistracy  by 


IN  BEHALF  OF  JEAN  PELTIER. 


573 


mean  rDmpliances  ; by  an  immoderate  and  unconscientious  exer- 
cise of  power  ; yet  I am  convinced,  by  circumstances  which  I 
shall  now  abstain  from  discussing,  that  I am  to  consider  this  as  the 
first  of  a long  series  of  conflicts  between  the  greatest  power  in  the 
world  and  the  only  free  press  now  remaining  in  Europe. 

Gentlemen,  this  distinction  of  the  English  press  is  new;  it  is  a 
proud  and  melancholy  distinction.  Before  the  great  earthquake  of 
the  French  Revolution  had  swallowed  up  all  the  asylums  of  free 
discussion  on  the  Continent,  we  enjoyed  that  privilege,  indeed, 
more  fully  than  others;  but  we  did  not  enjoy  it  exclusively.  In 
great  monarchies,  the  press  has  always  been  considered  as  too  for- 
midable an  engine  to  be  intrusted  to  unlicensed  individuals.  But, 
in  other  continental  countries,  either  by  the  laws  of  the  State,  or  by 
long  habits  of  liberality  and  toleration  in  magistrates,  a liberty  of 
discussion  has  been  enjoyed,  perhaps  sufficient  enough  for  most 
useful  purposes.  It  existed,  in  fact,  where  it  was  not  protected  by 
law;  and  the  wise  and  generous  connivance  of  governments  was 
daily  more  and  more  secured  by  the  growing  civilization  of  theii 
subjects.  In  Holland,  in  Switzerland,  in  the  imperial  towns  of  Ger- 
many, the  press  was  either  legally  or  practically  free.  Holland  and 
Switzerland  are  no  more;  and,  since  the  commencement  of  this 
prosecution,  fifty  imperial  towns  have  been  erased  from  the  list  of 
independent  States  by  one  dash  of  the  pen.  Three  or  four  still 
preserve  a precarious  and  trembling  existence.  I will  not  say  by 
what  compliances  they  must  purchase  its  continuance.  I will  not 
insult  the  feebleness  of  States,  whose  unmerited  fall  I do  most 
bitterly  deplore. 

3.  Reasons  for  the  temporary  toleration  of  a free  press 

IN  THE  MINOR  EUROPEAN  STATES. 

These  governments  were,  in  many  respects,  one  of  the  most 
interesting  parts  of  the  ancient  system  of  Europe.  Unfortunately 
for  the  repose  of  mankind,  great  States  are  compelled,  by  regard 
to  their  own  safety,  to  consider  the  military  spirit  and  martial 
habits  of  their  people  as  one  of  the  main  objects  of  their  policy. 
Frequent  hostilities  seem  almost  the  necessary  condition  of  their 
greatness;  and,  without  being  great,  they  cannot  long  remain  safe. 
Smaller  States  exempted  from  this  cruel  necessity — a hard  con- 
dition of  greatness,  a bitter  satire  on  human  nature — devoted  them- 
selves to  the  arts  ot  peace,  to  the  cultivation  of  literature,  and  the 


674 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


improvement  of  reason.  They  became  places  of  refuge  for  free 
and  fearless  discussion;  they  were  the  impartial  spectators  and 
judges  of  the  various  contests  of  ambition  which,  from  time  to 
time,  disturbed  the  quiet  of  the  world.  They  thus  becam«? 
peculiarly  qualified  to  be  the  organs  of  that  public  opinion  which 
converted  Europe  into  a great  republic,  with  laws  which  mitigated, 
though  they  could  not  extinguish  ambition;  and  with  moral  tribu- 
nals to  which  even  the  most  despotic  sovereigns  were  amenable. 
If  wars  of  aggrandizement  were  undertaken,  their  authors  were 
arraigned  in  the  face  of  Europe.  If  acts  of  internal  tyranny  were 
perpetrated,  they  resounded  from  a thousand  presses  throughout 
all  civilized  countries.  Princes  on  whose  will  there  were  no  legal 
checks,  thus  found  a moral  restraint  which  the  most  powerful  of 
them  could  not  brave  with  absolute  impunity.  They  acted  before 
a vast  audience,  to  whose  applause  or  condemnation  they  could 
not  be  utterly  indifterent.  The  very  constitution  of  human  nature, 
the  unalterable  laws  of  the  mind  of  man,  against  which  all  rebel- 
lion is  fruitless,  subjected  the  proudest  tyrants  to  this  control.  No 
elevation  of  power,  no  depravity,  however  consummate,  no  inno- 
cence, however  spotless,  can  render  man  wholly  independent  of 
the  praise  or  blame  of  his  fellow-men. 

These  governments  were,  in  other  respects,  one  of  the  most 
beautiful  and  interesting  parts  of  our  ancient  system.  The  perfect 
security  of  such  inconsiderable  and  feeble  States,  their  undisturbed 
tranquillity  amid  the  wars  and  conquests  that  surrounded  them, 
attested,  beyond  any  other  part  of  the  European  system,  the  mod- 
eration, the  justice,  the  civilization  to  which  Christian  Europe  had 
reached  in  modern  times.  Their  weakness  was  protected  only  by 
the  habitual  reverence  for  justice,  which,  during  a long  series  of 
ages,  had  grown  up  in  Christendom.  This  was  the  only  fortifica- 
tion which  defended  them  against  those  mighty  monarchs  to 
whom  they  offered  so  easy  a prey.  And  till  the  French  Revolu- 
tion, this  was  sufficient.  Consider,  for  instance,  the  situation  of 
the  republic  of  Geneva.  Think  of  her  defenseless  position,  in 
the  very  jaws  of  France;  but  think  also  of  her  undisturbed  security, 
of  her  profound  quiet,  of  the  brilliant  success  with  which  she  applied 
to  industry  and  literature,  while  Louis  XIV  was  pouring  his  myri- 
ads into  Italy  before  her  gates.  Call  to  mind,  if  ages  crowded  into 
years  have  not  effaced  them  from  your  memory,  that  happy  period, 
when  we  scarcely  dreamed  of  the  subjugation  of  the  feeblest  re- 
public of  Europe  than  of  the  conquest  of  her  mightiest  empire; 


IN  BEHALF  OF  JEAN  PELTIER. 


575 


and  tell  me,  if  you  can  imagine  a spectacle  more  beautiful  to  the 
moral  eye,  or  a more  striking  proof  of  progress  in  the  noblest  prin- 
ciples of  true  civilization. 

4.  How  THE  LIBERTY  OF  THE  CONTINENTAL  PRESS  PERISHED, 
WHILE  THE  PRESS  OF  ENGLAND  ALONE  REMAINED  FREE. 

These  feeble  States — these  monuments  of  the  justice  of  Europe 
— the  asylum  of  peace,  of  industry,  and  of  literature — the  organs 
of  public  reason — the  refuge  of  oppressed  innocence  and  persecuted 
truth,  have  perished  with  those  ancient  principles  which  were  their 
sole  guardians  and  protectors.  They  have  been  swallowed  up  by 
that  fearful  convulsion  which  has  shaken  the  uttermost  corners  of 
the  earth.  They  are  destroyed  and  gone  forever. 

One  asylum  of  free  discussion  is  still  inviolate.  There  is  still 
one  spot  in  Europe  where  man  can  freely  exercise  his  reason  on 
the  most  important  concerns  of  society;  where  he  can  boldly  pub- 
lish his  judgment  on  the  acts  of  the  proudest  and  most  powerful 
tyrants.  The  press  of  England  is  still  free.  It  is  guarded  by  the 
free  Constitution  of  our  forefathers.  It  is  guarded  by  the  hearts 
and  arms  of  Englishmen,  and,  I trust  I may  venture  to  say,  that  if 
it  be  to  fall,  it  will  fall  only  under  the  ruins  of  the  British  empire. 

It  is  an  awful  consideration,  gentlemen.  Every  other  monu- 
ment of  European  liberty  has  perished.  That  ancient  fabric  which 
has  been  gradually  reared  by  the  wisdom  and  virtue  of  our  fathers 
still  stands.  It  stands,  thanks  be  to  God  ! solid  and  entire;  but  it 
stands  alone,  and  it  stands  amid  ruins. 

In  these  extraordinary  circumstances,  I repeat  that  I must  con- 
sider this  as  the  first  of  a long  series  of  conflicts  between  the  great- 
est power  in  the  world  and  the  only  free  press  remaining  in  Europe. 
And,  I trust,  that  you  will  consider  yourselves  as  the  advance 
guards  of  liberty,  as  having  this  day  to  fight  the  first  battle  of  free 
discussion  against  the  most  formidable  enemy  that  it  ever  encount- 
ered. You  will,  therefore,  excuse  me  if,  on  so  important  an  occa- 
sion, I remind  you,  at  more  length  than  is  usual,  of  those  general 
principles  and  law  of  policy  on  this  subject  which  have  been 
handed  down  to  us  by  our  ancestors. 

5.  The  distinction  between  libel,  and  history  or  discussion. 

Philosophy  of  the  law  of  libel. 

Those  who  slowly  built  up  the  fabric  of  our  laws  never  attempted 
anything  so  absurd  as  to  define,  by  any  precise  rule,  the  obscure 


576 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


and  shifting  boundaries  which  divide  libel  from  history  or  discus- 
sion. It  is  a subject  which,  from  its  nature,  admits  neither  rules 
nor  definitions.  The  same  words  may  be  perfectly  innocent  in 
one  case,  and  most  mischievous  and  libelous  in  another.  A change 
of  circumstances,  often  apparently  slight,  is  sufficient  to  make  the 
whole  difference.  These  changes,  which  may  be  as  numerous  as 
the  variety  of  human  intentions  and  conditions,  can  never  be  fore- 
seen nor  comprehended  under  any  legal  definitions,  and  the  framers 
of  our  law  have  never  attempted  to  subject  them  to  such  definitions. 
They  left  such  ridiculous  attempts  to  those  wffio  call  themselves 
philosophers,  but  who  have,  in  fact,  proved  themselves  most  grossly 
and  stupidly  ignorant  of  that  philosophy  which  is  conversant  with 
human  affairs. 

The  principles  of  the  law  of  England  on  the  subject  of  political 
libel  are  few  and  simple,  and  they  are  necessarily  so  broad,  that, 
without  an  habitually  mild  administration  of  justice,  they  might  en- 
croach materially  on  the  liberty  of  political  discussion.  Every 
publication  which  is  intended  to  vilify  either  our  own  government 
or  the  government  of  any  foreign  State  in  amity  with  this  kingdom, 
is,  by  the  law  of  England,  a libel.  To  protect  political  discussion 
from  the  danger  to  which  it  would  be  exposed  by  these  wide  prin- 
ciples, if  they  were  severely  and  literally  enforced,  our  ancestors 
trusted  to  various  securities — some  growing  out  of  the  law  and 
Constitution,  and  others  arising  from  the  characters  of  those  public 
officers  whom  the  Constitution  had  formed,  and  to  whom  its  ad- 
ministration is  committed.  They  trusted,  in  the  first  place,  to  the 
moderation  of  the  legal  officers  of  the  Crown,  educated  in  the  max- 
ims and  imbued  with  the  spirit  of  a free  government;  controlled 
by  the  superintending  power  of  Parliament,  and  peculiarly  watched 
in  all  political  prosecutions  by  the  reasonable  and  wholesome  jeal- 
ousy of  their  fellow  subjects.  And,  I am  bound  to  admit,  that, 
since  the  glorious  era  of  the  Revolution  [1688],  making  due  allow- 
ance for  the  frailties,  the  faults,  and  the  occasional  vices  of  men, 
they  have,  upon  the  whole,  not  been  disappointed.  I know  that, 
in  the  hands  of  my  learned  friend,  that  trust ‘will  never  be  abused. 
But,  above  all,  they  confided  in  the  moderation  and  good  sense  of 
all  juries,  popular  in  their  origin,  popular  in  their  feelings,  popular 
in  their  very  prejudices,  taken  from  the  mass  of  the  people,  and 
immediately  returning  to  that  mass  again.  By  these  checks  and 
temperaments  they  hoped  that  they  should  sufficiently  repress 
malignant  libels,  without  endangering  that  freedom  of  inquiry 


IN  BEHALF  OF  JEAN  PELTIER. 


57T 


which  is  the  first  security  of  a free  State.  They  knew  that  the 
offense  of  a political  libel  is  of  a very  peculiar  nature,  and  differ- 
ing in  the  most  important  particulars  from  all  other  crimes.  In  all 
other  cases,  the  most  severe  execution  of  law  can  only  spread  terror 
among  the  guilty;  but,  in  political  libels,  it  inspires  even  the  inno- 
cent with  fear.  This  striking  peculiarity  arises  from  the  -same  cir- 
cumstances which  make  it  impossible  to  define  the  limits  of  libel 
and  innocent  discussion;  which  make  it  impossible  for  a man  of 
the  purest  and  most  honorable  mind  to  be  always  perfectly  certain 
whether  he  be  within  the  territory  of  fair  argument  and  honest 
narrative,  or  whether  he  may  not  have  unwittingly  overstepped  the 
faint  and  varying  line  which  bounds  them.  But,  gentlemen,  I will 
go  further.  This  is  the  only  offense  where  severe  and  frequent 
punishments  not  only  intimidate  the  innocent,  but  deter  men  from 
the  most  meritorious  acts,  and  from  rendering  the  most  important 
services  to  their  country.  They  indispose  and  disqualify  men  for 
the  discharge  of  the  most  sacred  duties  which  they  owe  to  man- 
kind. To  inform  the  public  on  the  conduct  of  those  who  adminis- 
ter public  affairs,  requires  courage  and  conscious  security.  It  is 
always  an  invidious  and  obnoxious  office;  but  it  is  often  the  most 
necessary  of  all  public  duties.  If  it  is  not  done  boldly,  it  cannot 
be  done  effectually,  and  it  is  not  from  writers  trembling  under  the 
uplifted  scourge  that  we  are  to  hope  for  it. 

6.  The  maintenance  of  justice  on  the  continent  essen- 
tial TO  THE  SECURITY  OF  GrEAT  BRITAIN. 

There  are  other  matters,  gentlemen,  to  which  I am  desirous  of 
particularly  calling  your  attention.  These  are  the  circumstances 
in  the  condition  of  this  country  which  have  induced  our  ancestors, 
at  all  times,  to  handle  with  more  than  ordinary  tenderness  that 
branch  of  the  liberty  of  discussion  which  is  applied  to  the  con- 
duct of  foreign  states.  The  relation  of  this  kingdom  to  the  com- 
monwealth of  Europe  is  so  peculiar,  that  no  history,  I think,  fur- 
nishes a parallel  to  it.  From  the  moment  in  which  we  abandoned 
all  projects  of  continental  aggrandizement,  we  could  have  no  in- 
terest respecting  the  state  of  the  Continent  but  the  interests  of 
national  safety  and  of  commercial  prosperity.  The  paramount 
interest  of  every  state — that  which  comprehends  every  other — is 
security.  And  the  security  of  Great  Britain  requires  nothing  on 
the  Continent  but  the  uniform  observance  of  justice.  It  requires 
37 


578 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


nothing  but  the  inviolability  of  ancient  boundaries  and  the  sacred- 
ness of  ancient  possessions,  which,  on  these  subjects,  is  but  an- 
other form  of  words  for  justice.  A nation  which  is  herself  shut 
out  from  the  possibility  of  continental  aggrandizement  can  have  no 
interest  but  that  of  preventing  such  aggrandizement  in  others.  We 
can  have  no  interest  of  safety  but  the  preventing  of  those  encroach- 
ments which,  by  their  immediate  effects,  or  by  their  example,  may 
be  dangerous  to  ourselves.  We  can  have  no  interest  of  ambition 
respecting  the  Continent.  So  that  neither  our  real,  nor  even  ou 
apparent  interests,  can  ever  be  at  variance  with  justice. 

7.  War  never  beneficial  to  a commercial  nation. 

As  to  commercial  prosperity,  it  is,  indeed,  a secondary,  but  it  ib 
still  a very  important  branch  of  our  national  interests,  and  it  re- 
quires nothing  on  the  continent  of  Europe  but  the  maintenance  of 
peace,  as  far  as  the  paramount  interest  of  security  will  allow. 

Whatever  ignorant  or  prejudiced  men  may  affirm,  no  war  was 
ever  gainful  to  a commercial  nation.  Losses  may  be  less  in  some, 
and  incidental  profits  may  arise  in  others.  But  no  such  profits 
ever  formed  an  adequate  compensation  for  the  waste  of  capital  and 
industry  which  all  wars  must  produce.  Next  to  peace,  our  com- 
mercial greatness  depends  chiefly  on  the  affluence  and  prosperity 
of  our  neighbors.  A commercial  nation  has,  indeed,  the  same  in- 
terest in  the  wealth  of  her  neighbors  that  a tradesman  has  in  the 
wealth  of  his  customers.  The  prosperity  of  England  has  been 
chiefly  owing  to  the  general  progress  of  civilized  nations  in  the 
arts  and  improvements  of  social  life.  Not  an  acre  of  land  has 
been  brought  into  cultivation  in  the  wilds  of  Siberia  or  on  the 
shores  of  the  Mississippi  which  has  not  widened  the  market  for 
English  industry.  It  is  nourished  by  the  progressive  prosperity  of 
the  world,  and  it  amply  repays  all  that  it  has  received.  It  can 
only  be  employed  in  spreading  civilization  and  enjoyment  over  the 
earth  ; and  by  the  unchangeable  laws  of  nature,  in  spite  of  the 
impotent  tricks  of  government,  it  is  now  partly  applied  to  revive 
the  industry  of  those  very  nations  who  are  the  loudest  in  their 
senseless  clamors  against  its  pretended  mischiefs.  If  the  blind  and 
barbarous  project  of  destroying  English  prosperity  could  be  accom- 
plished, it  could  have  no  other  effect  than  that  of  completely  beg- 
garing the  very  countries  who  now  stupidly  ascribe  their  own  pov- 
erty to  our  wealth. 


IN  BEHALF  OF  JEAN  PELTIER. 


579 


8.  The  freedom  of  the  press  can  not  be  impaired  without 

DANGER  TO  THE  STATE. 

Under  these  circumstances,  gentlemen,  it  became  the  obvious 
policy  of  the  kingdom,  a policy  in  unison  with  the  maxims  of  a 
free  government,  to  consider  with  great  indulgence  even  the  bold- 
est animadversions  of  our  political  writers  on  the  ambitious  pro- 
jects of  foreign  states. 

Bold,  and  sometimes  indiscreet  as  these  animadversions  might 
be,  they  had,  at  least,  the  effect  of  warning  the  people  of  their  dan- 
ger, and  of  rousing  the  national  indignation  against  those  encroach- 
ments which  England  has  almost  always  been  compelled  in  the  end 
to  resist  by  arms.  Seldom,  indeed,  has  she  been  allowed  to  wait 
till  a provident  regard  to  her  own  safety  should  compel  her  to  take 
up  arms  in  defense  of  others.  For  as  it  was  said  by  a great  orator 
of  antiquity  that  no  man  ever  was  the  enemy  of  the  republic  who 
had  not  first  declared  war  against  him,  so  I may  say,  with  truth, 
that  no  man  ever  meditated  the  subjugation  of  Europe  who  did 
not  consider  the  destruction  or  the  corruption  of  England  as  the 
first  condition  of  his  success.  If  you,  examine  history,  you  will 
find  that  no  such  project  was  ever  formed  in  which  it  was  not 
deemed  a necessary  preliminary,  either  to  detach  England  from  the 
common  cause  or  to  destroy  her.  It  seems  as  if  all  the  conspira- 
tors against  the  independence  of  nations  might  have  sufficiently 
taught  other  states  that  England  is  their  natural  guardian  and  pro- 
tector ; that  she  alone  has  no  interest  but  their  preservation  ; that 
her  safety  is  interwoven  with  their  own.  When  vast  projects  of 
aggrandizement  are  manifested,  when  schemes  of  criminal  ambi- 
tion are  carried  into  effect,  the  day  of  battle  is  fast  approaching 
for  England.  Her  free  government  cannot  engage  in  dangerous 
wars  without  the  hearty  and  affectionate  support  of  her  people. 
A state  thus  situated,  can  not  without  the  utmost  peril,  silence 
those  public  discussions  which  are  to  point  the  popular  indigna- 
tion against  those  who  must  soon  be  enemies.  In  domestic  dissen- 
sions, it  may  sometimes  be  the  supposed  interest  of  government  to 
overawe  the  press.  But  it  never  can  be  even  their  apparent  inter- 
est when  the  danger  is  purely  foreign.  A King  of  England  who, 
in  such  circumstances,  should  conspire  against  the  free  press  of 
this  country,  would  undermine  the  foundations  of  his  own  throne  ; 
he  would  silence  the  trumpet  which  is  to  call  his  people  round  his 
standard. 


580 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


Our  ancestors  never  thought  it  their  policy  to  avert  the  resent- 
ment  of  foreign  tyrants  by  enjoining  English  writers  to  contain  and 
repress  their  just  abhorrence  of  the  criminal  enterprises  of  ambi- 
tion. This  great  and  gallant  nation,  which  has  fought  in  the  front 
of  every  battle  against  the  oppressors  of  Europe,  has  sometimes 
inspired  fear,  but,  thank  God,  she  has  never  felt  it.  We  know  that 
they  are  our  real,  and  must  soon  become  our  declared  foes.  We 
know  that  there  can  be  no  cordial  amity  between  the  natural  ene- 
mies and  the  independence  of  nations.  We  have  never  adopted 
the  cowardly  and  short-sighted  policy  of  silencing  our  press,  of 
breaking  the  spirit  and  palsying  the  hearts  of  our  people  for  the 
sake  of  a hollow  and  precarious  truce.  We  have  never  been  base 
enough  to  purchase  a short  respite  from  hostilities  by  sacrificing 
the  first  means  of  defense  ; the  means  of  rousing  the  public  spirit 
of  the  people,  and  directing  it  against  the  enemies  of  their  coun- 
try and  of  Europe. 

Gentlemen,  the  public  spirit  of  a people,  by  which  J mean  the 
whole  body  of  those  affections  which  unites  men’s  hearts  to  the 
commonwealth,  is  in  various  countries  composed  of  various  ele- 
ments, and  depends  on  a great  variety  of  causes.  In  this  country, 
I may  venture  to  say  that  it  mainly  depends  on  the  vigor  of  the 
popular  parts  and  principles  of  our  government,  and  that  the  spirit 
of  liberty  is  one  of  its  most  important  elements.  Perhaps  it  may 
depend  less  on  those  advantages  of  a free  government,  which  are 
most  highly  estimated  by  calm  reason,  than  upon  those  parts  of  it 
which  delight  the  imagination,  and  flatter  the  just  and  natural 
pride  of  mankind.  Among  these  we  are  certainly  not  to  forget 
the  political  rights  which  are  not  uniformly  withheld  from  the  low- 
est classes,  and  the  continual  appeal  made  to  them  in  public  dis- 
cussion, upon  the  greatest  interests  of  the  state.  These  are  un- 
doubtedly among  the  circumstances  which  endear  to  Englishmen 
their  government  and  their  country,  and  animate  their  zeal  for  that 
glorious  institution  which  confers  on  the  meanest  of  them  a sort  of 
distinction  and  nobility  unknown  to  the  most  illustrious  slaves, 
who  tremble  at  the  frown  of  a tyrant.  Whoever  were  unwarily 
and  rashly  to  abolish  or  narrow  these  privileges,  which  it  must  be 
owned  are  liable  to  great  abuse,  and  to  very  specious  objections, 
might  perhaps  discover  too  late  that  he  had  been  dismantling  his 
country.  Of  whatever  elements  public  spirit  is  composed,  it  is 
always  and  everywhere  the  chief  defensive  principle  of  a state.  It 
is  perfectly  distinct  from  courage.  Perhaps  no  nation,  certainly 


IX  BEHALF  OF  JEAX  PELTIER. 


581 


no  European  nation,  ever  perished  from  an  inferiority  of  courage. 
And  undoubtedly  no  considerable  nation  was  ever  subdued  in 
which  the  public  affections  were  sound  and  vigorous. 

It  is  public  spirit  which  binds  together  the  dispersed  courage 
of  individuals  and  fastens  it  to  the  commonwealth.  It  is,  there- 
fore, as  I have  said,  the  chief  defensive  principle  of  every  country. 
Of  all  the  stimulants  which  arouse  it  into  action,  the  most  power- 
ful among  us  is  certainly  the  press  ; and  it  cannot  be  restrained  or 
weakened  without  imminent  danger  that  the  national  spirit  may 
languish,  and  that  the  people  may  act  with  less  zeal  and  affection 
for  their  country  in  the  hour  of  its  danger. 

These  principles,  gentlemen,  are  not  new — they  are  genuine  old 
English  principles.  And  though,  in  our  days,  they  have  been  dis- 
graced and  abused  by  ruffians  and  fanatics,  they  are,  in  themsel/es, 
as  just  and  sound  as  they  are  liberal;  and  they  are  the  only  princi- 
ples on  which  a free  State  can  be  safely  governed.  These  principles 
I have  adopted  since  I first  learned  the  use  of  reason,  and  I think  I 
shall  abandon  them  only  with  life.  On  these  principles  I am  now 
to  call  your  attention  to  the  libel  with  which  this  unfortunate  gen- 
tleman is  charged. 

9 Malice  the  essence  of  the  crime  of  libel. — The  priv- 
ilege OF  THE  HISTORIAN. 

I heartily  rejoice  that  I concur  with  the  greatest  part  of  what  has 
been  said  by  my  learned  friend,  Mr.  Attorney  General,  who  has  done 
honor  even  to  his  character  by  the  generous  and  liberal  principles 
which  he  has  laid  down.  He  has  told  you  that  he  does  not  mean  to 
attack  historical  narrative.  He  has  told  you  that  he  does  not  mean 
to  attack  political  discussion.  He  has  told  you,  also,  that  he  does 
not  consider  every  intemperate  word  into  which  a writer,  fairly 
engaged  in  narration  or  reasoning,  might  be  betrayed,  as  a fit  sub- 
ject for  prosecution. 

The  essence  of  the  crime  of  libel  consists  in  the  malignant  mind 
which  the  publication  proves,  and  from  which  it  flows.  A jury 
must  be  convinced,  before  they  find  a man  guilty  of  libel,  that  his 
intention  was  to  libel,  not  to  state  facts  which  he  believed  to  be 
true,  or  reasonings  which  he  thought  just.  My  learned  friend  has 
told  you  that  the  liberty  of  history  includes  the  right  of  publishing 
those  observations  which  occur  to  intelligent  men  when  they  con- 
sider the  affairs  of  the  world;  and,  I think,  he  will  not  deny  that  it 


582 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


includes  also  the  right  of  expressing  those  sentiments  which  all 
good  men  feel  on  the  contemplation  of  extraordinary  examples  of 
depravity  or  excellence. 

One  more  privilege  of  the  historian,  which  the  attorney-gen- 
eral has  not  named,  but  to  which  his  principles  extend,  it  is  now  my 
duty  to  claim  on  behalf  of  my  client;  I mean  the  right  of  republish- 
ing^ historically^  those  documents,  whatever  their  original  malignity 
may  be,  which  display  the  character  and  unfold  the  intentions  of 
governments,  or  factions,  or  individuals.  I think  my  learned 
friend  will  not  deny  that  a historical  compiler  may  innocently  re- 
publish in  England  the  most  insolent  and  outrageous  declaration 
of  war  ever  published  against  his  Majesty  by  a foreign  govern- 
ment. The  intention  of  the  original  author  was  to  vilify  and  de- 
grade his  Majesty’s  governm.ent;  but  the  intention  of  the  compiler 
is  only  to  gratify  curiosity,  or,  perhaps,  to  rouse  just  indignation 
against  the  calumniator  whose  production  he  republishes.  His 
intention  is  not  libelous — his  republication  is,  therefore,  not  a libel. 
Suppose  this  to  be  the  case  with  Mr.  Peltier.  Suppose  him  to 
have  republished  libels  with  a merely  historical  intention.  In  that 
case  it  cannot  be  pretended  that  he  is  more  a libeler  than  my 
learned  friend,  Mr.  Abbott,*  who  read  these  supposed  libels  to  you 
when  he  opened  the  pleadings.  Mr.  Abbott  republished  them  to 
you,  that  you  might  know  and  judge  of  them — Mr.  Peltier,  on  the 
supposition  I have  made,  also  republished  them,  that  the  public 
might  know  and  judge  of  them. 

You  already  know  that  the  general  plan  of  Mr.  Peltier’s  publi- 
cation was  to  give  a picture  of  the  cabals  and  intrigues,  of  the 
hopes  and  projects  of  French  factions.  It  is  undoubtedly  a natural 
and  necessary  part  of  this  plan  to  republish  all  the  serious  and 
ludicrous  pieces  which  these  factions  circulate  against  each  other. 
The  ode  ascribed  to  Chenier  or  Ginguene  I do  really  believe 
to  have  been  written  at  Paris,  to  have  been  circulated  there,  to 
'have  been  there  attributed  to  some  one  of  these  writers,  to  have 
been  sent  to  England  as  their  work,  and  as  such,  to  have  been  re- 
published by  Mr.  Peltier.  But  I am  not  sure  that  I have  evidence 
to  convince  you  of  the  truth  of  this.  Suppose  that  I have  not, 
will  my  learned  friend  say  that  my  client  must  necessarily  be  con- 
victed ? I,  on  the  contrary,  contend  that  it  is  for  my  learned  friend 
to  show  that  it  is  not  a historical  republication.  Such  it  professes 
to  be,  and  that  profession  it  is  for  him  to  disprove.  The  profes- 
’ Junior  counsel  for  the  Crown,  afterward  Lord  Tenterden. 


IN  BEHALF  OF  JEAN  PELTIER. 


583 


sion  may  indeed  be  a mask;  ” but  it  is  for  my  friend  to  pluck  off 
the  mask,  and  expose  the  libeler,  before  he  calls  upon  you  for  a 
verdict  of  guilty. 

If  the  general  lawfulness  of  such  republications  be  denied,  then 
I must  ask  Mr.  Attorney-General  to  account  for  the  long  impunity 
which  English  newspapers  have  enjoyed.  I must  request  him  to 
tell  you  why  they  have  been  suffered  to  republish  all  the  atrocious, 
official  and  unoffcial  libels  which  have  been  published  against  his 
Majesty  for  the  last  ten  years,  by  the  Brissots,  the  Marats,  the  Dan- 
tons,  the  Robespierres,  the  Barreres,  the  Talliens,  the  Reubells,  the 
Merlins,  the  Barrases,  and  all  that  long  line  of  bloody  tyrants  who 
oppressed  their  own  country  and  insulted  every  other  which  they 
had  not  the  power  to  rob.  What  must  be  the  answer  ? That  the 
English  publishers  were  either  innocent,  if  their  motive  was  to 
gratify  curiosity,  or  praiseworthy,  if  their  intention  was  to  rouse 
indignation  against  the  calumniators  of  their  country.  If  any 
other  answer  be  made,  I must  remind  my  friend  of  a most 
sacred  part  of  his  duty — the  duty  of  protecting  the  honest  fame 
of  those  who  are  absent  in  the  service  of  their  country.  Within 
these  few  days  we  have  seen,  in  every  newspaper  in  England,  a 
publication,  called  the  Report  of  Colonel  Sebastian!,  in  which 
a gallant  British  officer  [General  Stuart]  is  charged  with  writing 
letters  to  procure  assassination.  The  publishers  of  that  infamous 
report  are  not,  and  will  not  be  prosecuted,  because  their  intention 
is  not  to  libel  General  Stuart.  On  any  other  principle,  why  have 
all  our  newspapers  been  suffered  to  circulate  that  most  atrocious 
of  all  libels  against  the  king  and  people  of  England,  which  pur- 
ports to  be  translated  from  the  Moniteur  of  the  ninth  of  August, 
1802 — a libel  against  a prince  who  has  passed  through  a factious 
and  stormy  reign  of  forty-three  years,  without  a single  imputation 
on  his  personal  character;  against  a people  who  have  passed 
through  the  severest  trials  of  national  virtue  with  unimpaired  glory 
— who  alone  in  the  world  can  boast  of  mutinies  without  murder; 
of  triumphant  mobs,  without  massacre;  of  bloodless  revolutions, 
and  of  civil  wars  unstained  by  a single  assassination.  That  most 
impudent  and  malignant  libef  which  charges  such  a king  of  such 
a people,  not  only  with  having  hired  assassins,  but  with  being  so 
shameless,  so  lost  to  all  sense  of  character,  as  to  have  bestowed  on 
these  assassins,  if  their  murderous  projects  had  succeeded,  the  high- 
est badges  of  public  honor,  the  rewards  reserved  for  statesmen  and 
heroes — the  order  of  the  garter — the  order  which  was  founded  by 


584 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


the  heroes  of  Cressy  and  Poitiers — the  garter  which  was  worn  by 
Henry  the  Great  and  by  Gustavus  Adolphus,  which  might  now  be 
worn  by  the  hero  who,  on  the  shores  of  Syria  [Sir  Sydney  Smith] 
— the  ancient  theater  of  English  chivalry — has  revived  the  renown 
of  English  valor  and  of  English  humanity — that  unsullied  garter 
which  a detestable  libeler  dares  to  say  is  to  be  paid  as  the  price  of 
murder. 

If  I had  now  to  defend  an  English  publisher  for  the  republica- 
tion of  that  abominable  libel,  what  must  I have  said  in  his  defense? 
I must  have  told  you  that  it  was  originally  published  by  the  French 
government  in  their  official  gazette;  that  it  was  republished  by  the 
English  editor  to  gratify  the  natural  curiosity,  perhaps  to  rouse  the 
just  resentment  of  his  English  readers.  I should  have  contended, 
and,  I trust,  with  success,  that  his  republication  of  a libel  was  not 
libelous;  that  it  was  lawful,  that  it  was  laudable.  All  that  v/ould 
be  important,  at  least  all  that  would  be  essential  in  such  a defense, 
I now  state  to  you  on  behalf  of  Mr.  Peltier;  and,  if  an  English  news- 
paper may  safely  republish  the  libels  of  the  French  government 
against  his  Majesty,  I shall  leave  you  to  judge  whether  Mr.  Peltier, 
in  similar  circumstances,  may  not,  with  equal  safety,  republish  the 
libels  of  Chenier  against  the  First  Consul.  On  the  one  hand,  you 
have  the  assurances  of  Mr.  Peltier  in  the  context  that  this  ode  is 
merely  a republication — you  have  also  the  general  plan  of  his  work, 
with  which  such  a republication  is  perfectly  consistent.  On  the 
other  hand,  you  have  only  the  suspicions  of  Mr.  Attorney-General 
that  this  ode  is  an  original  production  of  the  defendar^t. 

lo.  A SATIRE  NOT  A LIBEL. 

But  supposing  that  you  should  think  it  his  production,  and  that 
you  should  also  think  it  a libel,  even  in  that  event,  which  I cannot 
anticipate,  I am  not  left  without  a defense.  The  question  will  still 
be  open,  “ Is  it  a libel  on  Bonaparte,  or  is  it  a libel  on  Chenier  or 
Ginguene  ?”  This  is  not  an  information  for  a libel  on  Chenier,  and 
if  you  should  think  that  this  ode  was  produced  by  Mr.  Peltier,  and 
ascribed  by  him  to  Chenier,  for  the  sake  of  covering  that  writer 
with  the  odium  of  Jacobinism,  the  defendant  is  entitled  to  your  ver- 
dict of  not  guilty.  Or,  if  you  should  believe  that  it  is  ascribed  to 
Jacobinical  writers,  for  the  sake  of  satirizing  a French  Jacobinical 
faction,  you  must  also,  in  that  case,  acquit  him.  Butler  puts  sedi- 
tious and  immoral  language  into  the  mouth  of  rebels  and  fanatics' 


BEHALP  OF  JEAJ^  PELTIER. 


585 


Lut  Hudibras  is  not,  for  that  reason,  a libel  on  morality  or  govern- 
ment. Swift,  in  the  most  exquisite  piece  of  irony  in  the  world  (his 
argument  against  the  abolition  of  Christianity),  uses  the  language 
of  those  shallow,  atheistical  coxcombs  whom  his  satire  was  intended 
to  scourge.  The  scheme  of  his  irony  required  some  levity  and 
even  some  profaneness  of  language.  But  nobody  was  ever  so  dull 
as  to  doubt  whether  Swift  meant  to  satirize  atheism  or  religion.  In 
the  same  manner  Mr.  Peltier,  when  he  wrote  a satire  on  French 
Jacobinism,  was  compelled  to  ascribe  to  Jacobins  a Jacobinical 
hatred  of  government.  He  was  obliged,  by  dramatic  propriety,  to 
put  into  their  mouths  those  anarchical  maxims  which  are  com- 
plained of  in  his  ode.  But,  it  will  be  said,  these  incitements  to  in- 
surrection are  here  directed  against  the  authority  of  Bonaparte. 
This  proves  nothing,  because  they  must  have  been  so  directed,  if 
the  ode  were  a satire  on  Jacobinism.  French  Jacobins  must  in- 
veigh against  Bonaparte,  because  he  exercises  the  powers  of  gov- 
ernment. The  satirist  who  attacks  them  must  transcribe  their 
sentiments  and  adopt  their  language. 

I do  not  mean  to  say,  gentlemen,  that  Mr.  Peltier  feels  any 
affection,  or  professes  any  allegiance  to  Bonaparte.  If  I were  to 
say  so,  he  would  disown  me.  He  would  disdain  to  purchase  an  ac- 
quittal by  the  profession  of  sentiments  which  he  disclaims  and  ab- 
hors. Not  to  love  Bonaparte  is  no  crime.  The  question  is  not 
whether  Mr.  Peltier  loves  or  hates  the  First  Consul,  but  whether  he 
has  put  revolutionary  language  into  the  mouth  of  Jacobins  with  a 
view  to  paint  their  incorrigible  turbulence,  and  to  exhibit  the  fruits 
of  Jacobinical  revolutions  to  the  detestation  of  mankind. 

II.  Df.fkndant  had  a legal  right  to  satirize  jacobinism. 

Now,  gentlemen,  we  cannot  give  a probable  answer  to  this 
question  without  previously  examining  two  or  three  questions,  on 
which  the  answer  to  the  first  must  very  much  depend.  Is  there  a 
faction  in  France  which  breathes  the  spirit,  and  is  likely  to  employ 
the  language  of  this  ode  ? Does  it  perfectly  accord  with  their  char- 
acter and  views  ? Is  it  utterly  irreconcilable  with  the  feelings, 
opinions,  and  wishes  of  Mr.  Peltier  ? If  these  questions  can  be 
answered  in  the  afiirmative,  then,  I think,  you  must  agree  with  me 
that  Mr.  Peltier  does  not,  in  this  ode,  speak  his  own  sentiments; 
that  he  does  not  here  vent  his  own  resentment  against  Bonaparte; 
but  that  he  personates  a Jacobin,  and  adopts  his  language  for  the 
sake  of  satirizing  his  principles. 


586 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


These  questions,  gentlemen,  lead  me  to  those  political  discus- 
sions which,  generally  speaking,  are  in  a court  of  justice  odious 
and  disgusting.  Here,  however,  they  are  necessary,  and  I shall 
consider  them  only  as  far  as  the  necessities  of  this  cause  require. 

12.  The  spirit  of  jacobinism  not  extinguished. 

Gentlemen,  the  French  Revolution — I must  pause  after  I have 
uttered  words  which  present  such  an  overwhelming  idea.  But  I 
have  not  now  to  engage  in  an  enterprise  so  far  beyond  my  force  as 
that  of  examining  and  judging  that  tremendous  Revolution.  I 
have  only  to  consider  the  character  of  the  factions  which  it  must 
have  left  behind  it. 

The  French  Revolution  began  with  great  and  fatal  errors.  These 
errors  produced  atrocious  crimes.  A mild  and  feeble  monarchy 
was  succeeded  by  bloody  anarchy,  which,  very  shortly,  gave  birth 
to  military  despotism.  France,  in  a few  years,  described  the  whole 
circle  of  human  society. 

All  this  was  in  the  order  of  nature.  When  every  principle  of 
authority  and  civil  discipline,  when  every  principle  which  enables 
some  men  to  command,  and  disposes  others  to  obey,  was  extirpated 
from  the  mind  by  atrocious  theories,  and  still  more  atrocious  ex- 
amples; v/hen  every  old  institution  was  trampled  down  with  con- 
tumely, and  every  new  institution  covered  in  its  cradle  with  blood; 
when  the  principle  of  property  itself,  the  sheet-anchor  of  society, 
was  annihilated;  when  in  the  persons  of  the  new  possessors,  whom 
the  poverty  of  language  obliges  us  to  call  proprietors,  it  was  con- 
taminated in  its  source  by  robbery  and  murder,  and  it  became  sep- 
arated from  that  education  and  those  manners,  from  that  general 
presumption  of  superior  knowledge  and  more  scrupulous  probity 
which  form  its  only  liberal  titles  to  respect;  when  the  people  were 
taught  to  despise  everything  old,  and  compelled  to  detest  everything 
new,  there  remained  only  one  principle  strong  enough  to  hold  soci- 
ety together,  a principle  utterly  incompatible,  indeed,  with  liberty, 
and  unfriendly  to  civilization  itself,  a tyrannical  and  barbarous 
principle;  but,  in  that  miserable  condition  of  human  affairs,  a 
refuge  from  still  more  intolerable  evils.  I mean  the  principle  of 
military  power  which  gains  strength  from  that  confusion  and  blood- 
shed in  which  all  the  other  elements  of  society  are  dissolved,  and 
which,  in  these  terrible  extremities,  is  the  cement  that  preserves  it 
from  total  destruction. 

Under  such  circumstances  Bonaparte  usurped  the  supreme 


IN  BEHALF  OF  JEAN  PELTIEH. 


587 


power  in  France.  I say  usurped^  because  an  illegal  assumption  of 
power  is  a usurpation.  But  usurpation,  in  its  strongest  moral  sense, 
is  scarcely  applicable  to  a period  of  lawless  and  savage  anarchy. 

The  guilt  of  military  usurpation,  in  truth,  belongs  to  the  author 
of  those  confusions  which,  sooner  or  later,  give  birth  to  such  a 
usurpation. 

Thus,  to  use  the  words  of  the  historian,  “ by  recent  as 
well  as  ancient  example,  it  became  evident  that  illegal  violence, 
with  whatever  pretenses  it  may  be  covered,  and  whatever  object  it 
may  pursue,  must  inevitably  end  at  last  in  the  arbitrary  and  des- 
potic government  of  a single  person.”  ^ But  though  the  government 
of  Bonaparte  has  silenced  the  revolutionary  factions,  it  has  not  and 
it  cannot  have  extinguished  them.  No  human  power  could  reim- 
press upon  the  minds  of  men  all  those  sentiments  and  opinions 
which  the  sophistry  and  anarchy  of  fourteen  years  had  obliterated. 
A faction  must  exist  which  breathes  the  spirit  of  the  ode  now  be- 
fore you. 

It  is,  I know,  not  the  spirit  of  the  quiet  and  submissive  majority 
of  the  French  people.  They  have  always  rather  suffered  than  acted 
in  the  revolution.  Completely  exhausted  by  the  calamities  through 
which  they  have  passed,  they  yield  to  any  power  which  gives  them 
repose.  There  is,  indeed,  a degree  of  oppression  which  rouses  men 
to  resistance;  but  there  is  another  and  a greater,  which  wholly  sub- 
dues and  unmans  them.  It  is  remarkable  that  Robespierre  him- 
self was  safe  till  he  attacked  his  own  accomplices.  The  spirit  of 
men  of  virtue  was  broken,  and  there  was  no  vigor  of  character  left 
to  destroy  him  but  in  those  daring  ruffians  who  were  the  sharers 
of  his  tyranny. 

As  for  the  wretched  populace  who  were  made  the  blind  and 
senseless  instrument  of  so  many  crimes,  whose  frenzy  can  now  be  re- 
viewed by  a good  mind  with  scarce  any  moral  sentiment  but  that 
of  compassion;  that  miserable  multitude  of  beings,  scarcely  human, 
have  already  fallen  into  a brutish  forgetfulness  of  the  very  atroci- 
ties which  they  themselves  perpetrated.  They  have  already  for- 
gotten all  the  acts  of  their  drunken  fury.  If  you  ask  one  of  them, 
who  destroyed  that  magnificent  monument  of  religion  and  art  ? or 
who  perpetrated  that  massacre  ? they  stupidly  answer,  the  Jacobins! 
though  he  who  gives  the  answer  was  probably  one  of  those  Jaco- 
bins himself;  so  that  a traveler,  ignorant  of  French  history,  might 
suppose  the  name  of  Jacobins  to  be  the  name  of  some  Tartar  horde, 
1 Hume  Hist,  of  England,  v.  7,  p.  220. 


588 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


who,  after  laying  waste  France  for  ten  years,  were,  at  last,  expelled  by 
the  native  inhabitants.  They  have  passed  from  senseless  rage  to 
stupid  quiet.  Their  delirium  is  followed  by  lethargy. 


13.  A PICTURE  OF  THE  FRENCH  JACOBINS. 

In  a word,  gentlemen,  the  great  body  of  the  people  of  France 
have  been  severely  trained  in  those  convulsions  and  proscriptions 
which  are  the  school  of  slavery.  They  are  capable  of  no  mutinous, 
and  even  no  bold  and  manly  political  sentiments.  And  if  this  ode 
professed  to  paint  their  opinions,  it  would  be  a most  unfaithful 
picture.  But  it  is  otherwise  with  those  who  have  been  the  actors 
and  leaders  in  the  scene  of  blood.  It  is  otherwise  with  the  numer- 
ous agents  of  the  most  indefatigable,  searching,  multiform,  and 
omnipresent  tyranny  that  ever  existed,  which  pervaded  every  class 
of  society  which  had  ministers  and  victims  in  every  village  in 
France. 

Some  of  them,  indeed,  the  basest  of  the  race,  the  sophists,  the 
rhetors,  the  poet-laureates  of  murder,  who  were  cruel  only  from  cow- 
ardice and  calculating  selfishness,  are  perfectly  willing  to  transfer 
their  venal  pens  to  any  government  that  does  not  disdain  their  in- 
famous support.  These  men,  republicans  from  servility,  who  pub- 
lished rhetorical  panegyrics  on  massacre,  and  who  reduce  plunder 
to  a system  of  ethics,  are  as  ready  to  preach  slavery  as  anarchy. 
But  the  more  daring,  I had  almost  said,  the  more  respectable  ruf- 
fians, cannot  so  easily  bend  their  heads  under  the  yoke.  These 
fierce  spirits  have  not  lost 

“ That  unconquerable  will, 

And  study  of  revenge,  immortal  hate.” 

They  leave  the  luxuries  of  servitude  to  the  mean  and  dastardly 
hypocrites,  to  the  Belials  and  Mammons  of  the  infernal  faction. 
They  persue  their  old  end  of  tyranny  under  their  old  pretext  of 
liberty.  The  recollection  of  their  unbounded  power  renders  every 
inferior  condition  irksome  and  vapid;  and  their  former  atrocities 
form,  if  I may  so  speak,  a sort  of  moral  destiny  which  irresistibly 
impels  them  to  the  perpetration  of  new  crimes.  They  have  no 
place  left  for  penitence  on  earth.  They  labor  under  the  most 
awful  proscription  of  opinion  that  ever  was  pronounced  against 
human  beings.  They  have  cut  down  every  bridge  by  which  they 
could  retreat  into  the  society  of  men.  Awakened  from  their  dreams 


IX  BEHALF  OF  JEAN  PELTIER. 


589 


of  democracy,  the  noise  subsided  that  deafened  their  ears  to  the 
voice  of  humanity;  the  film  fallen  from  their  eyes  which  hid  from 
them  the  blackness  of  their  own  deeds;  haunted  by  the  memory  of 
their  inexpiable  guilt;  condemned  daily  to  look  on  the  faces  of 
those  whom  their  hands  made  widows  and  orphans,  they  are  goaded 
and  scourged  by  these  real  furies,  and  hurried  into  the  tumult  of 
new  crimes,  which  will  drown  the  cries  of  remorse;  or,  if  they  be  too 
depraved  for  remorse,  will  silence  the  curses  of  mankind.  Tyran- 
nical power  is  their  only  refuge  from  the  just  vengeance  of  their  fel- 
low-creatures. Murder  is  their  only  means  of  usurping  power. 
They  have  no  taste,  no  occupation,  no  pursuit  but  power  and  blood. 
If  their  hands  are  tied,  they  must  at  least  have  the  luxury  of  mur- 
derous projects.  They  have  drunk  too  deeply  of  human  blood  ever 
to  relinquish  their  cannibal  appetite. 

Such  a faction  exists  in  France.  It  is  numerous,  it  is  powerful, 
and  it  has  a principle  of  fidelity  stronger  than  any  that  ever  held 
together  a society.  They  are  ba7ided  together ^ by  despair  of  forgive- 
ness, by  the  iinanwious  detestation  of  7nankind.  They  are  now  con- 
tained by  a severe  and  stern  government.  But  they  still  meditate 
the  renewal  of  insurrection  and  massacre;  and  they  are  prepared 
to  renew  the  worst  and  most  atrocious  of  their  crimes,  that  crime 
against  posterity  and  against  human  nature  itself,  that  crime  of 
which  the  latest  generations  of  mankind  may  feel  the  fatal  conse* 
quences — the  crime  of  degrading  and  prostituting  the  sacred  name 
of  liberty. 

I must  own,  that  however  paradoxical  it  may  appear,  I should 
almost  think  not  worse,  but  more  meanly  of  them  if  it  were  other- 
wise. I must  then  think  them  destitute  of  that  which  I will  not 
call  courage,  because  that  is  the  name  of  a virtue  ; but  of  that 
ferocious  energy  which  alone  rescues  ruffians  from  contempt.  If 
they  were  destitute  of  that  which  is  the  heroism  of  murderers, 
they  would  be  the  lowest  as  well  as  the  most  abominable  of  beings. 

It  is  impossible  to  conceive  anything  more  despicable  than 
wretches  who,  after  hectoring  and  bullying  over  their  meek  and 
blameless  sovereign  and  his  defenseless  family,  whom  they  kept  so 
long  in  a dungeon  trembling  for  their  existence — whom  they  put  to 
death  by  a slow  torture  of  three  years,  after  playing  the  Repub- 
lican and  the  tyrannicide  to  women  and  children,  become  the  sup- 
ple and  fawning  slaves  of  the  first  government  that  knows  how  to 
wield  the  scourge  with  a firm  hand. 


590 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


14.  Republicans  and  Jacobins  distinguished. 

I have  ased  the  word  Republican  because  it  is  the  name  by 
which  this  atrocious  faction  describes  itself.  The  assumption  of 
that  name  is  one  of  their  crimes.  They  are  no  more  Republicans 
than  Royalists.  They  are  the  common  enemies  of  all  human 
society.  God  forbid  that  by  the  use  of  that  word  I should  be 
supposed  to  reflect  on  the  members  of  those  respectable  Repub- 
lican communities  which  did  exist  in  Europe  before  the  French 
Revolution.  That  Revolution  has  spared  many  monarchies,  but  it 
has  spared  no  republic  within  the  sphere  of  its  destructive  energy. 
One  republic  only  now  exists  in  the  world ~a  republic  of  English 
blood,  which  was  originally-  composed  of  Republican  societies, 
under  the  protection  of  a monarchy,  which  had,  therefore,  no 
great  and  perilous  change  in  their  internal  constitution  to  effect  ; 
and  of  which,  I speak  it  with  pleasure  and  pride,  the  inhabitants, 
even  in  the  convulsions  of  a most  deplorable  separation,  displayed 
the  humanity  as  well  as  valor  which,  I trust  I may  say,  they  inher- 
ited from  their  forefathers. 

Nor  do  I mean  by  the  use  of  the  word  “ Republican”  to  con- 
found this  execrable  faction  with  all  those  who,  in  the  liberty  of 
private  speculation,  may  prefer  a Republican  form  of  government. 
I own  that,  after  much  reflection,  I am  not  able  to  conceive  an 
error  more  gross  than  that  of  those  who  believe  in  the  possibility 
of  erecting  a republic  in  any  of  the  old  monarchical  countries  of 
Europe,  who  believe  that  in  such  countries  an  elective  supreme 
magistracy  can  produce  anything  but  a succession  of  stern  tyran- 
nies and  bloody  civil  wars.  It  is  a supposition  which  is  belied  by 
all  experience,  and  which  betrays  the  greatest  ignorance  of  the  first 
principles  of  the  constitution  of  society.  It  is  an  error  which  has 
a false  appearance  of  superiority  over  vulgar  prejudice  ; it  is^ 
therefore,  too  apt  to  be  attended  with  the  most  criminal  rashness 
and  presumption,  and  too  easy  to  be  inflamed  into  the  most  im- 
moral and  anti-social  fanaticism.  But  as  long  as  it  remains  a mere 
quiescent  error,  it  is  not  the  proper  subject  of  moral  disapproba- 
tion. 

If,  then,  gentlemen,  such  a faction,  falsely  calling  itself  repub- 
lican, exists  in  France,  let  us  consider  whether  this  ode  speaks  their 
sentiments,  describes  their  character,  agrees  with  their  views.  Try- 
ing it  by  the  principle  I have  stated,  I think  you  will  have  no  diffi- 
culty in  concluding  that  it  is  agreeable  to  the  general  plan  of  this 


m BEHALF  OF  JEAIT  PELTIER 


591 


publication  to  give  a historical  and  satirical  view  of  the  Brutuses 
and  brutes  of  the  republic — of  those  who  assumed  and  disgraced 
the  name  of  Brutus,  and  who,  under  that  name,  sat  as  judges  in 
their  mock  tribunals,  with  pistols  in  their  girdles,  to  anticipate  the 
office  of  the  executioner  on  those  unfortunate  men  whom  they 
treated  as  rebels,  for  resistance  to  Robespierre  and  Couthon. 

15.  The  publication  cannot  represent  the  opinions  of 

THE  DEFENDANT,  WHO  IS  A ROYALIST. 

I come  now  to  show  you  that  this  ode* cannot  represent  the 
opinions  of  Mr.  Peltier.  He  is  a French  royalist.  He  has  de- 
voted his  talents  to  the  cause  of  his  king.  For  that  cause  he  has 
sacrificed  his  fortune  and  hazarded  his  life.  For  that  cause  he  is 
proscribed  and  exiled  from  his  country.  I could  easily  conceive 
powerful  topics  of  royalist  invective  against  Bonaparte;  and,  if  Mr. 
Peltier  had  called  upon  Frenchmen  by  the  memory  of  St.  Louis  and 
Henry  the  Great,  by  the  memory  of  that  illustrious  family  which 
reigned  over  them  for  seven  centuries,  and  with  whom  all  their  martial 
renown  and  literary  glory  are  so  closely  connected;  if  he  had  adjured 
them  by  the  spotless  name  of  that  Louis  XVI,  the  martyr  of  his  love 
for  his  people,  which  scarce  a man  in  France  can  now  pronounce  but 
in  the  tone  of  pity  and  veneration;  if  he  had  thus  called  upon  them 
to  change  their  useless  regret  and  their  barren  pity  into  generous 
and  active  indignation;  if  he  had  reproached  the  conquerors  of 
Europe  with  the  disgrace  of  being  the  slaves  of  an  upstart  stranger; 
if  he  had  brought  before  their  minds  the  contrast  between  their 
country  under  her  ancient  monarch — the  source  and  model  of  re- 
finement in  manners  and  taste — and  since  their  expulsion,  the 
scourge  and  the  opprobrium  of  humanity;  if  he  had  exhorted 
them  to  drive  out  their  ignoble  tyrants  and  to  restore  their  native 
sovereign,  I should  then  have  recognized  the  voice  of  a royalist. 
I should  have  recognized  language  that  must  have  flowed  from  the 
heart  of  Mr.  Peltier,  and  I should  have  been  compelled  to  acknowl- 
edge that  it  was  pointed  against  Bonaparte. 

Here  Mr.  Mackintosh  showed  that  the  ode  expressed  the  sentiments  of  a 
Jacobin,  not  of  a royalist.  That  it  could  not  have  been  written  by  a royalist 
who  assumed  a Jacobin  disguise  to  serve  a royalist  purpose,  for  it  would  then 
have  to  be  considered  an  address  to  Jacobins,  and  the  fact  that  the  name  of  the 
defendant,  who  was  an  avowed  enemy  of  Jacobinism,  was  prefixed  to  it,  was 
wholly  inconsistent  with  such  a theory.  He  continued  ; 

* For  the  Ode,  see  Appendix,  p.  730. 


592 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


i6.  Observations  upon  the  ode. 

I can  not  conceive  it  to  be  necessary  that  I should  minutely 
examine  this  poem  to  confirm  my  construction.  There  are  one  or 
two  passages  on  which  I shall  make  a few  observations.  The  first 
is  the  contrast  between  the  state  of  England  and  that  of  France, 
of  which  an  ingenious  friend  * has  favored  me  with  a translation, 
which  I shall  take  the  liberty  of  reading  to  you. 

Her  glorious  fabric  England  rears 
On  law’s  fixed  base  alone  ; 

Law’s  guardian  pow’r  while  each  reveres, 

England  ! thy  people’s  freedom  fears 
No  danger  from  the  Throne. 

For  there,  before  the  almighty  Law, 

High  birth,  high  place,  with  pious  awe, 

In  reverend  homage  bend  : 

There  man’s  free  spirit,  unconstrain’d 
Exults,  in  man’s  best  rights  maintain’d. 

Rights,  which  by  ancient  valor  gain’d, 

From  age  to  age  descend. 

’ Britons,  by  no  base  fear  dismay’d, 

May  power’s  worst  acts  arraign  : 

Does  tyrant  force  their  rights  invade  ? 

They  call  on  Law’s  impartial  aid. 

Nor  call  that  aid  in  vain. 

Hence,  of  her  sacred  charter  proud, 

With  every  earthly  good  endow’d, 

O’er  subject  seas  unfurl’d, 

Britannia  waves  her  standard  wide, 

Hence,  sees  her  freighted  navies  ride 
Up  wealthy  Thames’  majestic  tide. 

The  wonder  of  the  world. ^ 

Here,  at  first  sight,  you  may  perhaps  think  that  the  consistency 
of  the  Jacobin  character  is  not  supported,  that  the  Republican  dis- 
guise is  thrown  off,  that  the  Royalist  stands  unmasked  before  you  ; 
but,  on  more  consideration,  you  will  find  that  such  an  inference 
would  be  too  hasty.  The  leaders  of  the  Revolution  are  now  re- 
duced to  envy  that  British  Constitution  which,  in  the  infatuation 
of  their  presumptuous  ignorance,  they  once  rejected  with  scorn. 
They  are  now  slaves,  as  they  themselves  confess,  because  twelve 

’ Mr.  Canning. 

* It  seems  that  the  entire  ode  was  not  set  out  in  the  indictment,  and  these 
particular  verses  do  not  appear.  For  the  benefit  of  the  resder,  we  give  them  ip 
the  appendix,  p.  734. 


IN  BEHALF  OF  JEAN  PELTIER. 


593 


years  ago  they  did  not  believe  Englishmen  to  be  free.  They  can 
not  but  see  that  England  is  the  only  popular  government  in 
Europe,  and  they  are  compelled  to  pay  a reluctant  homage  to  the 
justice  of  English  principles.  The  praise  of  England  is  too  strik- 
ing a satire  on  their  own  government  to  escape  them  ; and  I may 
accordingly  venture  to  appeal  to  all  those  who  know  anything  of 
the  political  circles  of  Paris,  whether  such  contrasts  between 
France  and  England  as  that  which  I have  read  to  you  be  not  the 
most  favorite  topics  of  the  opponents  of  Bonaparte.  But  in  the 
very  next  stanza, 

Cependant,  encore  affligee 
Par  I’odieuse  heredite, 

Londres  de  titres  surchargee, 

Londres  n’a  pas  VEgalite. 

You  see,  that  though  they  are  forced  to  surrender  an  unwilling 
tribute  to  our  liberty,  they  can  not  yet  renounce  all  their  fantastic 
and  deplorable  chimeras.  They  endeavor  to  make  a compromise 
between  the  experience  on  which  they  can  not  shut  their  eyes,  and 
the  wretched  systems  to  which  they  still  cling.  Fanaticism  is  the 
most  incurable  of  all  mental  diseases  ; because  in  all  its  forms, 
religious,  philosophical,  or  political,  it  is  distinguished  by  a sort  of 
mad  contempt  for  experience,  which  alone  can  correct  the  errors 
of  practical  judgment.  And  these  democratical  fanatics  still  speak 
of  the  odious  principle  of  ^‘hereditary  government.”  They  still 
complain  that  we  have  not  “equality.”  They  know  not  that  this 
odious  principle  of  inheritance  is  our  bulwark  against  tyranny ; 
that  if  we  had  their  pretended  equality,  we  should  soon  cease  to 
be  the  objects  of  their  envy.  These  are  the  sentiments  which  you 
would  naturally  expect  from  half-cured  lunatics.  But  once  more  I 
ask  you,  whether  they  can  be  the  sentiments  of  Mr.  Peltier? 
Would  he  complain  that  we  have  too  much  monarchy,  or  too  much 
of  what  they  call  aristocracy?  If  he  has  any  prejudices  against 
the  English  government,  must  they  not  be  of  an  entirely  opposite 
kind  ? 

Here  Mr.  Mackintosh  showed  that  there  was  nothing  in  the  ode  which 
could  be  construed  as  an  exhortation  to  assassinate  Napoleon.  He  continued  : 

17.  The  verses  contain  no  exhortation  to  assassinate 

Napoleon. 

Having  said  so  much  on  the  first  of  these  supposed  libels,  I 
shall  be  very  short  on  the  two  that  remain  — the  verses  ascribed  to 
38 


594 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


a Dutch  patriot,  and  the  parody  of  the  speech  of  Lepidus.  In  the 
first  of  these,  the  piercing  eye  of  Mr.  Attorney  General  has  again 
discovered  an  incitement  to  assassinate — the  most  learned  incite- 
ment to  assassinate  that  ever  was  addressed  to  such  ignorant  ruf- 
fians as  are  most  likely  to  be  employed  for  such  nefarious  purposes  ! 
An  obscure  allusion  to  an  obscure  and  perhaps  fabulous  part  of 
Roman  history,  to  the  supposed  murder  of  Romulus,  about  which 
none  of  us  know  anything,  and  of  which  the  Jacobins  of  Paris  and 
Amsterdam  probably  never  heard.  But  the  apotheosis  ! Here 
my  learned  friend  has  a little  forgotten  himself.  He  seems  to 
argue  as  if  apotheosis  always  presupposed  death.  But  he  must 
know  that  Augustus,  and  even  Tiberius  and  Nero,  were  deified 
during  their  lives,  and  he  can  not  have  forgotten  the  terms  in 
which  one  of  the  court  poets  of  Augustus  speaks  of  his  master’s 
divinity  : 

Praeseus  divus  habebitur 

Augustus  adjectis  Britannis 
Imperio. 

If  any  modern  rival  of  Augustus  should  choose  that  path  to 
Olympus,  I think  he  will  find  it  more  steep  and  rugged  than  that 
by  which  Pollux  and  Hercules  climbed  to  the  ethereal  towers,  and 
that  he  must  be  content  with  purpling  his  lips  with  Burgundy  on 
earth,  as  he  has  very  little  chance  of  purpling  them  with  nectar 
among  the  gods. 

The  utmost  that  can  seriously  be  made  of  this  passage  is,  that 
it  is  a wish  for  a man’s  death.  I repeat  that  I do  not  contend  for 
the  decency  of  publicly  declaring  such  wishes,  or  even  for  the  pro- 
priety of  entertaining  them  ; but  the  distance  between  such  a wish 
and  a persuasive  to  murder  is  immense.  Such  a wish  for  a man’s 
death  is  very  often  little  more  than  a strong,  though,  I admit,  not  a 
very  decent  way  of  expressing  detestation  for  his  character. 

But  without  pursuing  this  argument  any  further,  I think  myself 
entitled  to  apply  to  these  verses  the  same  reasoning  which  I have 
already  applied  to  the  first  supposed  libel  on  Bonaparte.  If  they 
be  the  real  composition  of  a pretended  Dutch  patriot,  Mr.  Peltier 
may  republish  them  innocently.  If  they  be  a satire  on  such  pre  ■ 
tended  Dutch  patriots,  they  are  not  a libel  on  Bonaparte.  Grant- 
ing, for  the  sake  of  argument,  that  they  did  entertain  a serious 
exhortation  to  assassinate,  is  there  anything  in  such  an  exhortation 
inconsistent  with  the  character  of  these  pretended  patriots  ? 

They  who  were  disaffected  to  the  mild  and  tolerant  government 


IN  BEHALF  OF  JEAN  PELTIER. 


595 


of  their  flourishing  country,  because  it  did  not  exactly  square  with 
all  their  theoretical  whimsies  ; they  who  revolted  from  that  admin- 
istration as  tyrannical,  which  made  Holland  one  of  the  wonders  of 
the  world  for  protected  industry,  for  liberty  of  action  and  opinion, 
and  for  a prosperity  which  I may  venture  to  call  the  greatest  vic- 
tory of  man  over  hostile  elements  ; they  who  called  in  the  aid  of 
the  fiercest  tyrants  that  Europe  ever  saw,  who  served  in  the  armies 
of  Robespierre,  under  the  impudent  pretext  of  giving  liberty  to 
their  country,  and  who  have  finally  buried  in  the  same  grave  its 
liberty,  its  independence,  and  perhaps  its  national  existence,  they 
are  not  men  entitled  to  much  tenderness  from  a political  satirist, 
and  he  will  scarcely  violate  dramatic  propriety  if  he  impute  to 
them  any  language,  however  criminal  and  detestable.  They  who 
could  not  brook  the  authority  of  their  old,  lazy,  good-natured 
government,  are  not  likely  to  endure  with  patience  the  yoke  of 
that  stern  domination  which  they  have  brought  upon  themselves, 
and  which,  as  far  as  relates  to  them,  is  only  the  just  punishment  of 
their  crimes.  They  who  call  in  tyrants  to  establish  liberty,  who 
sacrifice  the  independence  of  their  country  under  pretense  of  re- 
forming its  internal  constitution,  are  capable  of  everything. 

I know  nothing  more  odious  than  their  character,  unless  it  be 
that  of  those  who  invoked  the  aid  of  the  oppressors  of  Switzer- 
land to  be  the  deliverers  of  Ireland  ! Their  guilt  has,  indeed, 
peculiar  aggravations.  In  the  name  of  liberty,  they  were  willing 
to  surrender  their  country  into  the  hands  of  tyrants,  the  most  law- 
less, faithless,  and  merciless  that  ever  scourged  Europe  ; who,  at 
the  very  moment  of  their  negotiation,  were  covered  with  the  blood 
of  the  unhappy  Swiss,  the  martyrs  of  real  independence  and  of 
real  liberty.  Their  success  would  have  been  the  destruction  of  the 
only  free  community  remaining  in  Europe — of  England,  the  only 
bulwark  of  the  remains  of  European  independence.  Their  means 
were  the  passions  of  an  ignorant  and  barbarous  peasantry,  and  a 
civil  war,  which  could  not  fail  to  produce  all  the  horrible  crimes 
and  horrible  retaliations  of  the  last  calamity  that  can  befall  soci- 
ety— a servile  revolt.  They  sought  the  worst  of  ends  by  the  most 
abominable  of  means.  They  labored  for  the  subjugation  of  the 
world  at  the  expense  of  crimes  and  miseries  which  men  of  human- 
ity and  conscience  would  have  thought  too  great  a price  for  the 
deliverance  of  mankind. 

Here  Mr.  Mackintosh  referred  to  the  third  and  last  publication  set  out  in 
the  indictment,  the  parody  on  the  speech  of  Lepidus,  and  claimed  that  it  could 
only  be  reasonably  construed  as  a libel  on  M.  Fouche,  having  no  reference  to 
Bonaparte.  He  continued  ; 


59G 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


i8.  Free  discussion  the  most  important  interest  of 
MANKIND. — The  reign  of  Elizabeth. 

Believing,  as  I do,  that  we  are  on  the  eve  of  a great  struggle; 
that  this  is  only  the  first  battle  between  reason  and  power;  that 
you  have  now  in  your  hands,  committed  to  your  trust,  the  only  re- 
mains of  free  discussion  in  Europe,  now  confined  to  this  kingdom 
— addressing  you,  therefore,  as  the  guardians  of  the  most  import- 
ant interests  of  mankind;  convinced  that  the  unfettered  exercise  of 
reason  depends  more  on  your  present  verdict  than  on  any  other 
that  was  ever  delivered  by  a jury,  I cannot  conclude  without  bring- 
ing before  you  the  sentiments  and  examples  of  our  ancestors  in 
some  of  these  awful  and  perilous  situations  by  which  Divine  Provi- 
dence has,  in  former  ages,  tried  the  virtue  of  the  English  nation. 
We  are  fallen  upon  times  in  which  it  behooves  us  to  strengthen 
our  spirits  by  the  contemplation  of  great  examples  of  constancy. 
Let  us  seek  for  them  in  the  annals  of  our  forefathers. 

The  reign  of  Queen  Elizabeth  may  be  considered  as  the  open- 
ing of  the  modern  history  of  England,  especially  in  its  connection 
with  the  modern  system  of  Europe,  which  began  about  that  time  to 
assume  the  form  that  it  preserved  till  the  French  Revolution.  It 
was  a very  memorable  period,  of  which  the  maxims  ought  to  be  en- 
graven on  the  head  and  heart  of  every  Englishman.  Philip  II,  at 
the  head  of  the  greatest  empire  then  in  the  world,  was  openly  aim- 
ing at  universal  domination,  and  his  project  was  so  far  from  being 
thought  chimerical  by  the  wisest  of  his  contemporaries,  that,  in  the 
opinion  of  the  great  Duke  of  Sully,  he  must  have  been  successful,  “ if, 
by  a most  singular  combination  of  circumstances,  he  had  not  at  the 
same  time  been  resisted  by  two  such  strong  heads  as  those  of  Henry 
IV  and  Queen  Elizabeth.”  To  the  most  extensive  and  opulent  domin- 
ions, the  most  numerous  and  disciplined  armies,  the  most  renowned 
captains,  the  greatest  revenue,  he  added  also  the  most  formidable 
power  over  opinion.  He  was  the  chief  of  a religious  faction,  ani- 
mated by  the  most  atrocious  fanaticism,  prepared  to  second  his  am- 
bition by  rebellion,  anarchy  and  regicide  in  every  protestant  State. 
Elizabeth  was  among  the  first  objects  of  his  hostility.  That  wise 
and  magnanimous  princess  placed  herself  in  the  front  of  the  battle 
for  the  liberties  of  Europe.  Though  she  had  to  contend  at  home 
with  his  fanatical  faction,  which  almost  occupied  Ireland,  which 
divided  Scotland,  and  was  not  of  contemptible  strength  in  England, 
she  aided  the  oppressed  inhabitants  of  the  Netherlands  in  their 
juct  and  glorious  resistance  to  his  tyranny;  she  aided  Henry  the 


IN  BEHALF  OP  JEAN  PELTIER. 


597 


Great  in  suppressing  the  abominable  rebellion  which  anarchical 
principles  had  excited  and  Spanish  arms  had  supported  in  France, 
and  after  a long  reign  of  various  fortune,  in  which  she  preserved 
her  unconquered  spirit  through  great  calamities  and  still  greater 
dangers,  she  at  length  broke  the  strength  of  the  enemy,  and  re- 
duced his  power  within  such  limits  as  to  be  compatible  with  the 
safety  of  England  and  of  all  Europe.  Her  only  effectual  ally  was 
the  spirit  of  her  people,  and  her  policy  flowed  from  that  magnani- 
mous nature  which,  in  the  hour  of  peril,  teaches  better  lessons  than 
those  of  cold  reason.  Her  great  heart  inspired  her  with  a higher 
and  nobler  wisdom — which  disdained  to  appeal  to  the  low  and 
sordid  passions  of  her  people  even  for  the  protection  of  their  low 
and  sordid  interests,  because  she  knew,  or,  rather,  she  felt,  that 
these  are  effeminate,  creeping,  cowardly,  short-sighted  passions, 
which  shrink  from  conflict  even  in  defense  of  their  own  mean  ob- 
jects. In  a righteous  cause  she  roused  those  generous  affections  of 
her  people  which  alone  teach  boldness,  constancy  and  foresight, 
and  which  are,  therefore,  the  only  safe  guardians  of  the  lowest  as 
well  as  the  highest  interests  of  a nation.  In  her  memorable  ad- 
dress to  her  army,  when  the  invasion  of  the  kingdom  was  threat- 
ened by  Spain,  this  woman  of  heroic  spirit  disdained  to  speak  to 
them  of  their  ease  and  their  commerce,  and  their  wealth  and  their 
safety.  No  ! She  touched  another  chord — she  spoke  of  their 
national  honor,  of  their  dignity  as  Englishmen,  of  “ the  foul  scorn 
that  Parma  or  Spain  should  dare  to  invade  the  borders  of  her 
realms.”  She  breathed  into  them  those  grand  and  powerful  senti- 
ments which  exalt  vulgar  men  into  heroes,  which  led  them  into  the 
battle  of  their  country,  armed  with  holy  and  irresistible  enthusiasm; 
which  even  cover  with  their  shield  all  the  ignoble  interests  that 
base  calculation  and  cowardly  selfishness  tremble  to  hazard,  but 
shrink  from  defending. 

19,  Power  and  importance  of  the  press  in  preserving  the 

LIBERTIES  OF  ENGLISHMEN. 

A sort  of  prophetic  instinct,  if  I may  so  speak,  seems  to  have 
revealed  to  her  the  importance  of  that  great  instrument  for  rousing 
and  guiding  the  minds  of  men,  of  the  effects  of  which  she  had  no 
experience,  which,  since  her  time,  has  changed  the  condition 
of  the  world,  but  which  few  modern  statesmen  have  thoroughly 
understood  or  wisely  employed;  which  is,  no  doubt,  connected 
with  many  ridiculous  and  degrading  details,  which  has  pro- 


598 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


duced,  and  which  may  again  produce,  terrible  mischiefs,  but  of 
which  the  influence  must,  after  all,  be  considered  as  the  most  cer- 
tain effect  and  the  most  efficacious  cause  of  civilization,  and  which, 
whether  it  be  a blessing  or  a curse,  is  the  most  powerful  engine  that 
a politician  can  move — I mean  the  press.  It  is  a curious  fact  that, 
in  the  year  of  the  Armada,  Queen  Elizabeth  caused  to  be  printed 
the  first  gazettes  that  ever  appeared  in  England;  and  I own,  when 
I consider  that  this  mode  of  rousing  a national  spirit  was  then  ab- 
solutely unexampled,  that  she  could  have  no  assurance  of  its  effi- 
cacy from  the  precedents  of  former  times,  I am  disposed  to  regard 
her  having  recourse  to  it  as  one  of  the  most  sagacious  experiments, 
one  of  the  greatest  discoveries  of  political  genius,  one  of  the  most 
striking  anticipations  of  future  experience  that  we  find  in  history. 
I mention  it  to  you  to  justify  the  opinion  that  I have  ventured  to 
state  of  the  close  connection  of  our  national  spirit  with  our  press, 
even  our  periodical  press. 

I cannot  quit  the  reign  of  Elizabeth  without  laying  before  you 
the  maxims  of  her  policy,  in  the  language  of  the  greatest  and 
wisest  of  men.  Lord  Bacon,  in  one  part  of  his  discourse  on  her 
reign,  speaks  thus  of  her  support  of  Holland  : “ But  let  me  rest 
upon  the  honorable  and  continual  aid  and  relief  she  hath  given  to 
the  distressed  and  desolate  people  of  the  Low  Countries — a people 
recommended  unto  her  by  ancient  confederacy  and  daily  inter- 
course, by  their  cause  so  innocent  and  their  fortune  so  lament- 
able !”  In  another  passage  of  the  same  discourse,  he  thus  speaks 
of  the  general  system  of  her  foreign  policy  as  the  protector  of 
Europe,  in  words  too  remarkable  to  require  any  commentary. 
“ Then  it  is  her  government,  and  her  government  alone,  that  hath 
been  the  sconce  and  fort  of  all  Europe,  which  hath  let  this  proud 
nation  from  overrunning  all.  If  any  state  be  yet  free  from  his 
factions  erected  in  the  bowels  thereof  ; if  there  be  any  state  where- 
in this  faction  is  erected  that  is  not  yet  fired  with  civil  troubles  ; if 
there  be  any  state  under  his  protection  that  enjoyeth  moderate  lib- 
erty, upon  whom  he  tyrannizeth  not,  it  is  the  mercy  of  this  re- 
nowned Queen  that  standeth  between  them  and  their  misfor- 
tunes !” 

20.  Louis  XIV. — His  arraignment  by  French  refugees 

NO  LIBEL. 

The  next  great  conspirator  against  the  rights  of  men  and  of 
nations,  against  the  security  and  independence  of  all  European 


IN  BEHALF  OF  JEAN  PELTIER. 


599 


states,  against  every  kind  and  degree  of  civil  and  religious  liberty, 
was  Louis  XIV.  In  his  time  the  character  of  the  English  nation 
was  the  more  remarkably  displayed,  because  it  was  counteracted 
by  an  apostate  and  perfidious  government.  During  great  part  of 
his  reign,  you  know  that  the  throne  of  England  was  filled  by 
princes  who  deserted  the  cause  of  their  country  and  of  Europe, 
who  were  the  accomplices  and  the  tools  of  the  oppressor  of  the 
world,  who  were  even  so  unmanly,  so  unprincely,  so  base,  as  to 
have  sold  themselves  to  his  ambition  ; who  were  content  that  he 
should  enslave  the  continent,  if  he  enabled  them  to  enslave  Great 
Britain.  These  princes,  traitors  to  their  own  royal  dignity  and  to 
the  feelings  of  the  generous  people  whom  they  ruled,  preferred  the 
condition  of  the  first  slave  of  Louis  XIV  to  the  dignity  of  the 
first  freemen  of  England  ; yet  even  under  these  princes,  the  feel- 
ings of  the  people  of  this  kingdom  were  displayed,  on  a most 
memorable  occasion,  toward  foreign  sufferers  and  foreign  oppres- 
sors. The  revocation  of  the  Edict  of  Nantes  threw  fifty  thousand 
French  Protestants  on  our  shores.  They  were  received  as  I trust 
the  victims  of  tyranny  ever  will  be  in  this  land,  which  seems 
chosen  by  Providence  to  be  the  home  of  the  exile,  the  refuge  of 
the  oppressed.  They  were  welcomed  by  a people  high-spirited  as 
well  as  humane,  who  did  not  insult  them  by  clandestine  charity  ; 
who  did  not  give  alms  in  secret  lest  their  charity  should  be  de° 
tected  by  their  neighboring  tyrants  ! No  ! They  were  publicly 
and  nationally  welcomed  and  relieved.  They  were  bid  to  raise 
their  voice  against  their  oppressor,  and  to  proclaim  their  wrongs 
to  all  mankind.  They  did,  so.  They  were  joined  in  the  cry  of 
just  indignation  by  every  Englishman  worthy  of  the  name.  It  was 
a fruitful  indignation,  which  soon  produced  the  successful  resist- 
ance of  Europe  to  the  common  enemy.  Even  then,  when  Jeffreys 
disgraced  the  bench  which  his  lordship  (Lord  Ellenborough)  now 
adorns,  no  refugee  was  deterred  by  prosecution  for  libel  from  giv- 
ing vent  to  his  feelings,  from  arraigning  the  oppressor  in  the  face 
of  all  Europe. 

21.  The  invasion  of  Holland  an  avowed  attack  upon  the 

LIBERTY  OF  THE  PRESS. 

During  this  ignominious  period  of  our  history,  a war  arose  on 
the  continent,  which  cannot  but  present  itself  to  the  mind  on  such 
an  occasion  as  this  ; the  only  war  that  was  ever  made  on  the 
avowed  ground  of  attacking  a free  press.  I speak  of  the  invasion 


600 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


of  Holland  by  Louis  XIV.  The  liberties  which  the  Dutch 
gazettes  had  taken  in  discussing  his  conduct  were  the  sole  cause  of 
this  very  extraordinary  and  memorable  war,  which  was  of  short 
duration,  unprecedented  in  its  avowed  principle,  and  most  glorious 
in  its  event  for  the  liberties  of  mankind.  That  republic,  at  all 
times  so  interesting  to  Englishmen — in  the  worst  times  of  both 
countries  our  brave  enemies  ; in  their  best  times  our  most  faithful 
and  valuable  friends — was  then  charged  with  the  defense  of  a free 
press  against  the  oppressor  of  Europe,  as  a sacred  trust  for  the 
benefit  of  all  generations.  They  felt  the  sacredness  of  the  deposit; 
they  felt  the  dignity  of  the  station  in  which  they  were  placed,  and 
though  deserted  by  the  un-English  government  of  England,  they 
asserted  their  own  ancient  character,  and  drove  out  the  great 
armies  and  great  captains  of  the  oppressor  with  defeat  and  dis- 
grace. Such  was  the  result  of  the  only  war  hitherto  avowedly 
undertaken  to  oppress  a free  country  because  she  allowed  the  free 
and  public  exercise  of  reason.  And  may  the  God  of  justice  and 
liberty  grant  that  such  may  ever  be  the  result  of  wars  made  by 
tyrants  against  the  rights  of  mankind,  especially  against  that  right 
which  is  the  guardian  of  every  other. 

22.  William  of  Orange  saves  England  from  the  power  of 

Louis  XIV. 

This  war,  gentlemen,  had  the  effect  of  raising  up  from  obscu- 
rity the  great  Prince  of  Orange,  afterward  King  William  III,  the 
deliverer  of  Holland,  the  deliverer  of  England,  the  deliverer  of 
Europe  ; the  only  hero  who  was  distinguished  by  such  a happy 
union  of  fortune  and  virtue  that  the  objects  of  his  ambition  were 
always  the  same  with  the  interests  of  humanity  ; perhaps  the  only 
man  who  devoted  the  whole  of  his  life  exclusively  to  the  service  of 
mankind.  This  most  illustrious  benefactor  of  Europe,  this  ‘‘  hero 
without  vanity  or  passion,”  as  he  has  been  justly  and  beautifully 
called  by  a venerable  prelate  (Dr.  Shipley,  Bishop  of  St.  Asaph), 
who  never  made  a step  toward  greatness  without  securing  or  ad- 
vancing liberty,  who  had  been  made  Stadtholder  of  Holland  for 
the  salvation  of  his  own  country,  was  soon  after  made  King  of 
England  for  the  deliverance  of  ours.  When  the  people  of  Great 
Britain  had  once  more  a government  worthy  of  them,  they  returned 
to  the  feelings  and  principles  of  their  ancestors,  and  resumed  their 
former  station  and  their  former  duties  as  protectors  of  the  inde- 
pendence of  nations.  The  people  of  England,  delivered  from  a 


nr  BEHALF  OF  JEAN  PELTIER. 


601 


government  which  disgraced,  oppressed,  and  betrayed  them,  fought 
under  William  as  their  forefathers  had  fought  under  Elizabeth, 
and  after  an  almost  uninterrupted  struggle  of  more  than  twenty 
years,  in  which  they  were  often  abandoned  by  fortune,  but  never 
by  their  own  constancy  and  magnanimity,  they  at  length  once 
more  defeated  those  projects  of  guilty  ambition,  boundless  aggran- 
dizement, and  universal  domination,  which  had  a second  time 
threatened  to  overwhelm  the  whole  civilized  world.  They  rescued 
Europe  from  being  swallowed  up  in  the  gulf  of  extensive  empire, 
which  the  experience  of  all  times  points  out  as  the  grave  of  civil- 
ization ; where  men  are  driven  by  violent  conquest  and  military 
oppression  into  lethargy  and  slavishness  of  heart ; where,  after 
their  arts  have  perished  with  the  mental  vigor  from  which  they 
spring,  they  are  plunged  by  the  combined  power  of  effeminacy  and 
ferocity  into  irreclaimable  and  hopeless  barbarism.  Our  ancestors 
established  the  safety  of  their  own  country  by  providing  for  that  of 
others,  and  rebuilt  the  European  system  upon  such  firm  founda- 
tions that  nothing  less  than  the  tempest  of  the  French  Revolution 
could  have  shaken  it. 

23.  Animadversion  of  the  English  press  on  the  projects  of 

Louis  XIV. 

This  arduous  struggle  was  suspended  for  a short  time  by  the 
peace  of  Ryswick.  The  interval  between  that  treaty  and  the  war 
of  the  succession  enables  us  to  judge  how  our  ancestors  acted  in  a 
very  peculiar  situation,  which  requires  maxims  of  policy  very 
different  from  those  which  usually  govern  states.  The  treaty  which 
they  had  concluded  was  in  truth  and  substance  only  a truce.  The 
ambition  and  the  power  of  the  enemy  were  such  as  to  render  real 
peace  impossible.  And  it  was  perfectly  obvious  that  the  disputed 
succession  of  the  Spanish  Monarch  would  soon  render  it  no  longer 
practicable  to  preserve  even  the  appearance  of  amity.  It  was 
desirable,  however,  not  to  provoke  the  enemy  by  unseasonable 
hostility ; but  it  was  still  more  desirable,  it  was  absolutely  neces- 
sary, to  keep  up  the  national  jealousy  and  indignation  against  him 
who  was  soon  to  be  their  open  enemy.  It  might  naturally  have 
been  apprehended  that  the  press  might  have  driven  into  premature 
war  a Prince  who,  not  long  before,  had  been  violently  exasperated 
by  the  press  of  another  free  country.  I have  looked  over  the 
political  publications  of  that  time  with  some  care,  and  I can  ven- 
ture to  say  that  at  no  period  were  the  system  and  projects  of  Louis 


602 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


XIV  animadverted  on  with  more  freedom  and  -boldness  than  dur- 
ing that  interval.  Our  ancestors  and  the  heroic  Prince  who  gov- 
erned them  did  not  deem  it  wise  policy  to  disarm  the  national  mind 
for  the  sake  of  prolonging  a truce.  They  were  both  too  proud 
and  too  wise  to  pay  so  great  a price  for  so  small  a benefit. 

24.  Influence  of  newspapers  on  domestic  and  foreign 

POLITICS. 

In  the  course  of  the  eighteenth  century,  a great  change  took 
place  in  the  state  of  political  discussion  in  this  country.  I speak 
of  the  multiplication  of  newspapers.  I know  that  newspapers  are 
not  very  popular  in  this  place,  which  is,  indeed,  not  very  surpris- 
ing, because  they  are  known  here  only  by  their  faults.  Their  pub- 
lishers come  here  only  to  receive  the  chastisement  due  to  their 
offenses.  With  all  their  faults,  I own  I cannot  help  feeling  some 
respect  for  whatever  is  a proof  of  the  increased  curiosity  and  in- 
creased knowledge  of  mankind;  and  I cannot  help  thinking  that  if 
somewhat  more  indulgence  and  consideration  were  shown  for  the 
difficulties  of  their  situation,  it  might  prove  one  of  the  best  cor- 
rectives of  their  faults,  by  teaching  them  that  self-respect  which  is 
the  best  security  for  liberal  conduct  toward  others.  But  however 
that  may  be,  it  is  very  certain  that  the  multiplication  of  these 
channels  of  popular  information  has  produced  a great  change  in 
the  state  of  our  domestic  and  foreign  politics.  At  home,  it  has? 
in  truth,  produced  a gradual  revolution  in  our  government.  By 
increasing  the  number  of  those  who  exercise  some  sort  of  judg- 
ment on  public  affairs,  it  has  created  a substantial  democracy,  in- 
finitely more  important  than  those  democratical  forms  which  have 
been  the  subject  of  so  much  contest.  So  that  I may  venture  to 
say,  England  has  not  only  in  its  forms  the  most  democratical  gov- 
ernment that  ever  existed  in  a great  country,  but  in  substance  has 
the  most  democratical  government  that  ever  existed  in  any  country: 
if  the  most  substantial  democracy  be  that  state  in  which  the  great- 
est number  of  men  feel  an  interest  and  express  an  opinion  upon 
political  questions,  and  in  which  the  greatest  number  of  judgments 
and  wills  concur  in  influencing  public  measures. 

The  same  circumstances  gave  great  additional  importance  to 
our  discussion  of  continental  politics.  That  discussion  was  no 
longer,  as  in  the  preceding  century,  confined  to  a few  pamphlets, 
written  and  read  only  by  men  of  education  and  rank,  which 
reached  the  multitude  very  slowly  and  rarely.  In  newspapers  an 


IN  BEHALF  OF  JEAN  PELTIER. 


603 


almost  daily  appeal  was  made,  directly  or  indirectly,  to  the  judg- 
ment and  passions  of  almost  every  individual  in  the  kingdom,  upon 
the  measures  and  principles  not  only  of  his  own  country,  but  of 
every  state  in  Europe.  Under  such  circumstances,  the  tone  of 
these  publications,  in  speaking  of  foreign  governments,  became  a 
matter  of  importance.  You  will  excuse  me,  therefore,  if,  before  I 
conclude,  I remind  you  of  the  general  nature  of  their  language  on 
one  or  two  very  remarkable  occasions,  and  of  the  boldness  with 
which  they  arraigned  the  crimes  of  powerful  sovereigns,  without 
any  check  from  the  laws  and  magistrates  of  their  own  country. 
This  toleration,  or  rather  this  protection,  was  too  long  and  uniform 
to  be  accidental.  I am,  indeed,  very  much  mistaken,  if  it  be  not 
founded  upon  a policy  which  this  country  cannot  abandon  without 
sacrificing  her  liberty  and  endangering  her  national  existence. 

25.  Arraignment  by  the  press  of  the  crime  against  Poland, 

The  first  remarkable  instance  which  I shall  choose  to  state  of 
the  unpunished  and  protected  boldness  of  the  English  press,  of  the 
freedom  with  which  they  animadverted  on  the  policy  of  powerful 
sovereigns,  is  the  partition  of  Poland  in  1772;  an  act  not,  perhaps, 
so  horrible  in  its  means,  nor  so  deplorable  in  its  immediate  effects, 
as  some  other  atrocious  invasions  of  national  independence  which 
have  followed  it ; but  the  most  abominable  in  its  general  tendency 
and  ultimate  consequences  of  any  political  crime  recorded  in  his- 
tory; because  it  was  the  first  practical  breach  in  the  system  of 
Europe,  the  first  example  of  atrocious  robbery  perpetrated  on  un- 
offending countries  w'hich  have  been  since  so  liberally  followed, 
and  which  has  broken  down  all  the  barriers  of  habit  and  principle 
which  guarded  defenseless  states.  The  perpetrators  of  this  atro- 
cious crime  were  the  most  powerful  sovereigns  of  the  continent, 
whose  hostility  it  certainly  was  not  the  interest  of  Great  Britain 
wantonly  to  incur.  They  were  the  most  illustrious  princes  of  their 
age,  and  some  of  them  were,  doubtless,  entitled  to  the  highest 
praise  for  their  domestic  administration,  as  well  as  for  the  brilliant 
qualities  which  distinguished  their  characters.  But  none  of  these 
circumstances,  no  dread  of  their  resentment,  no  admiration  of 
their  talents,  no  consideration  for  their  rank,  silenced  the  animad- 
version of  the  English  press.  Some  of  you  remember,  all  of  you 
know,  that  a loud  and  unanimous  cry  of  reprobation  and  execra- 
tion broke  out  against  them  from  every  part  of  this  kingdom.  It 
was  perfectly  uninfluenced  by  any  considerations  of  our  own  mere 


604 


SPEECH  OF  Sm  JAMES  MACKINTOSH 


national  interest,  which  might  perhaps  be  supposed  to  be  rather 
favorably  affected  by  that  partition.  It  was  not,  as  in  some 
other  countries,  the  indignation  of  rival  robbers,  who  were  ex- 
cluded from  their  share  of  the  prey.  It  was  the  moral  anger  of 
disinterested  spectators  against  atrocious  crimes,  the  gravest  and 
the  most  dignified  moral  principle  which  the  God  of  justice  has 
implanted  in  the  human  heart;  that  of  which  the  dread  is  the  only 
restraint  on  the  actions  of  powerful  criminals,  and  of  which  the 
promulgation  is  the  only  punishment  that  can  be  inflicted  on  them. 
It  is  a restraint  which  ought  not  to  be  weakened.  It  is  a punish» 
ment  which  no  good  man  can  desire  to  mitigate. 

That  great  crime  was  spoken  of  as  it  deserved  in  England. 
Robbery  was  not  described  by  any  courtly  circumlocutions.  Ra- 
pine was  not  called  policy;  nor  was  the  oppression  of  an  innocent 
people  termed  a mediation  in  their  domestic  differences.  No 
prosecutions,  no  criminal  informations  followed  the  liberty  and  the 
boldness  of  the  language  then  employed.  No  complaints  ever  ap- 
pear to  have  been  made  from  abroad,  much  less  any  insolent 
menaces  against  the  free  constitution  which  protected  the  English 
press.  The  people  of  England  were  too  long  known  throughout 
Europe  for  the  proudest  potentate  to  expect  to  silence  our  press 
by  such  means. 

I pass  over  the  second  partition  of  Poland  in  1792.  You  all 
remember  what  passed  on  that  occasion,  the  universal  abhorrence 
expressed  by  every  man  and  every  writer  of  every  party,  the  suc- 
cors that  were  publicly  preparing  by  large  bodies  of  individuals  of 
all  parties  for  the  oppressed  Poles. 

I hasten  to  the  final  dismemberment  of  that  unhappy  kingdom, 
which  seems  to  me  the  most  striking  example  in  our  history  of  the 
habitual,  principled,  and  deeply  rooted  forbearance  of  those  who 
administer  the  law  toward  political  writers.  We  were  engaged  in 
the  most  extensive,  bloody,  and  dangerous  war  that  this  country 
ever  knew  ; and  the  parties  to  the  dismemberment  of  Poland  were 
our  allies,  and  our  only  powerful  and  effective  allies.  We  had 
every  motive  of  policy  to  court  their  friendship.  Every  reason  of 
state  seemed  to  require  that  we  should  not  permit  them  to  be  abused 
and  villified  by  English  writers.  What  was  the  fact  ? Did  any 
Englishman  consider  himself  at  liberty,  on  account  of  temporary 
interests,  however  urgent,  to  silence  those  feelings  of  humanity  and 
justice  which  guard  the  certain  and  permanent  interests  of  all 
countries?  You  al/  remember  that  every  voice,  and  every  pen, 


IN  BEHALF  OF  JEAN  PELTIER. 


605 


and  every  press  in  England  were  unceasingly  employed  to  brand 
that  abominable  robbery.  You  remember  that  this  was  not  con- 
fined to  private  writers,  but  that  the  same  abhorrence  was  expressed 
by  every  member  of  both  Houses  of  Parliament  who  was  not  under 
the  restraints  of  ministerial  reserve.  No  minister  dared  even  to 
blame  the  language  of  honest  indignation  which  might  be  very  in- 
convenient to  his  most  important  political  projects  ; and  I hope  I 
may  venture  to  say  that  no  English  assembly  would  have  endured 
such  a sacrifice  of  eternal  justice  to  any  miserable  interest  of  an 
hour.  Did  the  law  officers  of  the  Crown  venture  to  come  into  a 
court  of  justice  to  complain  of  the  boldest  of  the  publications  of 
that  time  ? They  did  not.  I do  not  say  that  they  felt  any  disposi- 
tion to  do  so.  I believe  that  they  could  not.  But  I do  say  that  if 
they  had  ; if  they  had  spoken  of  the  necessity  of  confining  our 
political  writers  to  cold  narrative  and  unfeeling  argument  ; if  they 
had  informed  the  jury  that  they  did  not  prosecute  history,  but 
invective  ; that  if  private  writers  be  allowed  at  all  to  blame  great 
princes,  it  must  be  with  moderation  and  decorum;  the  sound  heads 
and  honest  hearts  of  an  English  jury  would  have  confounded  such 
sophistry,  and  declared  by  their  verdict  that  moderation  of  lan- 
guage is  a relative  term,  which  varies  with  the  subject  to  which  it 
is  applied  ; that  atrocious  crimes  are  not  to  be  related  as  calmly 
and  coolly  as  indifferent  or  trifling  events  ; that  if  there  be  a de- 
corum due  to  exalted  rank  and  authority,  there  is  also  a much 
more  sacred  decorum  due  to  virtue  and  to  human  nature,  which 
would  be  outraged  and  trampled  under  foot  by  speaking  of  guilt 
in  a lukewarm  language,  falsely  called  moderate. 

26.  The  invasion  of  Switzerland  ; — England  an  asylum 

FOR  ITS  OPPRESSED  HEROES. 

Soon  after,  gentlemen,  there  followed  an  act,  in  comparison 
with  which  all  the  deeds  of  rapine  and  blood  perpetrated  in  the 
world  are  innocence  itself — the  invasion  and  destruction  of  Swit- 
zerland, that  unparalleled  scene  of  guilt  and  enormity;  that  unpro- 
voked aggression  against  an  innocent  country,  which  had  been  the 
sanctuary  of  peace  and  liberty  for  three  centuries  ; respected  as  a 
sort  of  sacred  territory  by  the  fiercest  ambition  ; raised,  like  its 
own  mountains,  beyond  the  region  of  the  storms  which  raged 
around  on  every  side  ; the  only  warlike  people  that  never  sent  forth 
armies  to  disturb  their  neighbors  ; the  only  government  that  ever 
accumulated  treasures  without  imposing  taxes,  an  innocent  treas- 


606 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


ure,  unstained  by  the  tears  of  the  poor,  the  inviolate  patrimony  of 
the  commonwealth,  which  attested  the  virtue  of  a long  series  of 
magistrates,  but  which  at  length  caught  the  eye  of  the  spoiler,  and 
became  the  fatal  occasion  of  their  ruin. 

Gentlemen,  the  destruction  of  such  a country,*  “ its  cause  so  in- 
nocent and  its  fortune  so  lamentable  !”  made  a deep  impression  on 
the  people  of  England.  I will  ask  my  learned  friend  if  we  had 
then  been  at  peace  with  the  French  republic,  whether  we  must 
have  been  silent  spectators  of  the  foulest  crimes  that  ever  blotted 
the  name  of  humanity!  whether  we  must,  like  cowards  and  slaves, 
have  repressed  the  compassion  and  indignation  with  which  that  hor- 
rible scene  of  tyranny  had  filled  our  hearts  ? Let  me  suppose,  gentle- 
men, that  Aloys  Reding,  who  has  displayed  in  our  times  the  sim- 
plicity, magnanimity,  and  piety  of  ancient  heroes,  had,  after  his 
glorious  struggle,  honored  this  kingdom  by  choosing  it  as  his 
refuge;  that  after  performing  prodigies  of  valor  at  the  head  of  his 
handful  of  heroic  peasants  on  the  field  of  Morgarten,  where  his 
ancestor,  the  Landmann  Reding,  had,  five  hundred  years  before, 
defeated  the  first  oppressors  of  Switzerland,  he  had  selected  this 
country  to  be  his  residence,  as  the  chosen  abode  of  liberty,  as  the 
ancient  and  inviolable  asylum  of  the  oppressed,  would  my  learned 
friend  have  had  the  boldness  to  have  Said  to  this  hero  “that  he 
must  hide  his  tears  ” (the  tears  shed  by  a hero  over  the  ruins  of  his 
country!)  “lest  they  might  provoke  the  resentment  of  Reubell  or 
Rapinat ! that  he  must  smother  the  sorrow  and  the  anger  with  which 
his  heart  was  loaded;  that  he  must  breathe  his  murmurs  low,  lest 
they  might  be  overheard  by  the  oppressor!  “ Would  this  have  been 
the  language  of  my  learned  friend  ? I know  that  it  would  not.  I 
know  that  by  such  a supposition  1 have  done  wrong  to  his  honor- 
able feelings,  to  his  honest  English  heart.  I am  sure  that  he  knows, 
as  well  as  I do,  that  a nation  which  should  thus  receive  the  op- 
pressed of  other  countries  would  be  preparing  its  own  neck  for  the 
yoke.  He  knows  the  slavery  which  such  a nation  would  deserve, 
and  must  speedily  incur.  He  knows  that  sympathy  with  the  un- 
merited sufferings  of  others,  and  disinterested  anger  against  their 
oppressors,  are,  if  I may  so  speak,  the  masters  which  are  appointed 
by  Providence  to  teach  us  fortitude  in  the  defense  of  our  own  rights; 
that  selfishness  is  a dastardly  principle,  which  betrays  its  charge 
and  flies  from  its  post;  and  that  those  only  can  defend  themselves 
with  valor  who  are  animated  by  the  moral  approbation  with  which 

' Switzerland. 


IN  BEHALF  OF  JEAN  PELTIER. 


607 


they  can  survey  their  sentiments  towards  others,  who  are  ennobled 
in  their  own  eyes  by  a consciousness  that  they  are  fighting  for  jus- 
tice as  well  as  interest;  a consciousness  which  none  can  feel  but 
those  who  have  felt  for  the  wrongs  of  their  brethren.  These  are 
the  sentiments  which  my  learned  friend  would  have  felt.  He  would 
have  told  the  hero:  “Your  confidence  is  not  deceived;  this  is  still 
that  England,  of  which  the  history  may,  perhaps,  have  contributed 
to  fill  your  heart  with  the  heroism  of  liberty.  Every  other  country 
of  Europe  is  crouching  under  the  bloody  tyrants  who  destroyed 
your  country.  We  are  unchanged;  we  are  still  the  same  people 
which  received,  with  open  arms,  the  victims  of  the  tyranny  of 
Philip  II  and  Louis  XIV.  We  shall  not  exercise  a cowardly  and 
clandestine  humanity!  Here  we  are  not  so  dastardly  as  to  rob  you 
of  your  greatest  consolation.  Here,  protected  by  a free,  brave  and 
high-minded  people,  you  may  give  vent  to  your  indignation;  you 
may  proclaim  the  crimes  of  your  tyrants,  you  may  devote  them  to 
the  execration  of  mankind;  there  is  still  one  spot  upon  earth  in 
which  they  are  abhorred,  without  being  dreaded!  ” 

27.  The  reign  of  Robespierre. — Illustrations  to  show  the 

FALLACY  OF  THE  THEORY  OF  THE  PROSECUTION. 

I am  aware,  gentlemen,  that  I have  already  abused  your  induh 
gence,  but  I must  entreat  you  to  bear  with  me  for  a short  time 
longer,  to  allow  me  to  suppose  a case  which  might  have  occurred, 
in  which  you  will  see  the  horrible  consequences  of  enforcing  rigor- 
ously principles  of  law,  which  I cannot  counteract,  against  political 
writers.  We  might  have  been  at  peace  with  France  during  the 
whole  of  that  terrible  period  which  elapsed  between  August,  1792 
and  1794,  which  has  been  usually  called  the  reign  of  Robespierre  ! 
The  only  series  of  crimes,  perhaps,  in  history  which,  in  spite  of 
the  common  disposition  to  exaggerate  extraordinary  facts,  has  been 
beyond  measure  underrated  in  public  opinion.  I say  this,  gentle- 
men, after  an  investigation  which,  I think,  entitles  me  to  affirm  it 
with  confidence.  Men’s  minds  were  oppressed  by  atrocity  and  the 
multitude  of  crimes  ; their  humanity  and  their  indolence  took 
refuge  in  skepticism  from  such  an  overwhelming  mass  of  guilt ; 
and  the  consequence  was,  that  all  these  unparalleled  enormities, 
though  proved  not  only  with  the  fullest  historical  but  with  the 
strictest  judicial  evidence,  were  at  the  time  only  half  believed  and 
ire  now  scarcely  half  remembered.  When  these  atrocities  were 


608 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


daily  perpetrating,  of  which  the  greatest  part  are  as  little  known 
to  the  public  in  general  as  the  campaigns  of  Genghis  Khan,  but 
are  still  protected  from  the  scrutiny  of  men  by  the  immensity  of 
those  voluminous  records  of  guilt  in  which  they  are  related,  and 
under  the  mass  of  which  they  will  be  buried  till  some  historian  be 
found  with  patience  and  courage  enough  to  drag  them  forth  into 
light,  for  the  shame  indeed,  but  for  the  instruction  of  mankind-— 
when  these  crimes  were  perpetrating,  which  had  the  peculiar 
malignity,  from  the  pretexts  with  which  they  were  covered,  of  mak- 
ing the  noblest  objects  of  human  pursuit  seem  odious  and  detest- 
able ; which  has  almost  made  the  names  of  liberty,  reformation, 
and  humanity  synonymous  with  anarchy,  robbery,  and  murder ; 
which  thus  threatened  not  to  extinguish  every  principle  of  improve- 
ment, to  arrest  the  progress  of  civilized  society,  and  to  disinherit 
future  generations  of  that  rich  succession,  which  they  were  entitled 
to  expect  from  the  knowledge  and  wisdom  of  the  present,  but  to 
destroy  the  civilization  of  Europe,  which  never  gave  such  a proof 
of  its  vigor  and  robustness  as  in  being  able  to  resist  their  destruc- 
tive power — when  all  these  horrors  were  acting  in  the  greatest  em- 
pire of  the  continent,  I will  ask  my  learned  friend,  if  we  had  then 
been  at  peace  with  France,  how  English  writers  were  to  relate  them 
so  as  to  escape  the  charge  of  libeling  a friendly  government  ? 

When  Robespierre,  in  the  debates  in  the  National  Convention 
on  the  mode  of  murdering  their  blameless  sovereign,  objected  to  the 
formal  and  tedious  mode  of  murder  called  a trial,  and  proposed  to 
put  him  immediately  to  death,  “ on  the  principles  of  insurrection,” 
because  to  doubt  the  guilt  of  the  king  would  be  to  doubt  of  the  in- 
nocence of  the  convention;  and,  if  the  king  were  not  a traitor,  the 
convention  must  be  rebels,  would  my  learned  friend  have  had  an 
English  writer  state  all  this  with  “ decorum  and  moderatiofi  ? ” 
Would  he  have  had  an  English  writer  state  that  though  this  reason- 
ing was  not  perfectly  agreeable  to  our  national  laws,  or,  perhaps, 
to  our  national  prejudices,  yet  it  was  not  for  him  to  make  any 
observations  on  the  judicial  proceedings  of  foreign  States  ? 

When  Marat,  in  the  same  convention,  called  for  two  hundred 
and  seventy  thousand  heads,  must  our  English  writers  have  said 
that  the  remedy  did,  indeed,  seem  to  their  weak  judgment  rather 
severe;  but  that  it  was  not  for  them  to  judge  the  conduct  of  so 
illustrious  an  assembly  as  the  National  Convention,  or  the  sugges- 
tions of  so  enlightened  a statesman  as  M.  Marat  ? 

When  that  convention  resounded  with  applause  at  the  news  of 


IN'  BEHALF  OF  JEAN  PELTIER. 


609 


several  hundred  aged  priests  being  thrown  into  the  Loire,  and  par- 
ticularly at  the  exclamation  of  Carrier,  who  communicated  the  in- 
telligence, “What  a revolutionary  torrent  is  the  Loire” — ;when 
these  suggestions  and  narrations  of  murder,  which  have  hitherto 
been  only  hinted  and  whispered  in  the  most  secret  cabals,  in  the 
darkest  caverns  of  banditti,  were  triumphantly  uttered,  patiently 
endured,  and  even  loudly  applauded  by  an  assembly  of  seven  hun- 
dred men,  acting  in  the  sight  of  all  Europe,  would  my  learned 
friend  have  wished  that  there  had  been  found  in  England  a single 
writer  so  base  as  to  deliberate  upon  the  most  safe,  decorous,  and 
polite  manner  of  relating  all  these  things  to  his  countrymen  ? 

When  Carrier  ordered  five  hundred  children  under  fourteen 
years  of  age  to  be  shot,  the  greater  part  of  whom  escaped  the  fire 
from  their  size;  when  the  poor  victims  ran  for  protection  to  the 
soldiers,  and  were  bayoneted  clinging  around  their  knees  ! would 
my  friend — but  I cannot  pursue  the  strain  of  interrogation.  It  is 
too  much.  It  would  be  a violence  which  I cannot  practice  on  my 
own  feelings.  It  would  be  an  outrage  to  my  friend.  It  would  be 
an  insult  to  humanity.  No!  Better,  ten  thousand  times  better, 
would  it  be  that  every  press  in  the  world  were  burned;  that  the 
very  use  of  letters  were  abolished;  that  we  were  returned  to  the 
honest  ignorance  of  the  rudest  times,  than  that  the  results  of  civili- 
zation should  be  made  subservient  to  the  purposes  of  barbarism; 
than  that  literature  should  be  employed  to  teach  a toleration  for 
cruelty,  to  weaken  moral  hatred  for  guilt,  to  deprave  and  brutalize 
the  human  mind.  I know  that  I speak  my  friend’s  feelings  as  wel? 
as  my  own,  when  I say  God  forbid  that  the  dread  of  any  punish- 
ment should  ever  make  any  Englishman  an  accomplice  in  so  cor- 
rupting his  countrymen,  a public  teacher  of  depravity  and  bar- 
barity! 

Mortifying  and  horrible  as  the  idea  is,  I must  remind  you,  gen- 
tlemen, that  even  at  that  time,  even  under  the  reign  of  Robespierre, 
my  learned  friend,  if  he  had  then  been  attorney-general,  might 
have  been  compelled,  by  some  most  deplorable  necessity,  to  have 
come  into  this  court  to  ask  your  verdict  against  the  libelers  of 
Barrc^e  and  Collot  d’Herbois.  Mr.  Peltier  then  employed  his  tal- 
ents against  the  enemies  of  the  human  race,  as  he  has  unirormly 
and  bravely  done.  I do  not  believe  that  any  peace,  any  political 
considerations,  any  fear  of  punishment  would  have  silenced  him. 
He  has  shown  too  much  honor,  and  constancy,  and  intrepidity,  to 
be  shaken  by  such  circumstances  as  these. 

39 


610 


SPEECH  OF  SIR  JAMES  MACKINTOSH 


My  learned  friend  might  then  have  been  compelled  to  have  filed 
a criminal  information  against  Mr.  Peltier,  for  wickedly  and  ma- 
liciously intending  to  vilify  and  degrade  Maximilian  Robespierre, 
President  of  the  Committee  of  Public  Safety  of  the  French  Re- 
public.” He  might  have  been  reduced  to  the  sad  necessity  of  ap- 
pearing before  you  to  belie  his  own  better  feelings,  to  prosecute 
Mr.  Peltier  for  publishing  those  sentiments  which  my  friend  him- 
self had  a thousand  times  felt,  and  a thousand  times  expressed. 
He  might  have  been  obliged  even  to  call  for  punishment  upon  Mr. 
Peltier  for  language  which  he  and  all  mankind  would  forever  des- 
pise Mr.  Peltier  if  he  were  not  to  employ.  Then,  indeed,  gentle- 
men, we  should  have  seen  the  last  humiliation  fall  on  England;  the 
tribunals,  the  spotless  and  venerable  tribunals  of  this  free  country 
reduced  to  be  the  ministers  of  the  vengeance  of  Robespierre! 
What  could  have  rescued  us  from  this  last  disgrace  ? The  honesty 
and  courage  of  a jury.  They  would  have  delivered  the  judges  of 
this  country  from  the  dire  necessity  of  inflicting  punishment  on  a 
brave  and  virtuous  man,  because  he  spoke  truth  of  a monster. 
They  would  have  despised  the  threats  of  a foreign  tyrant,  as  their 
ancestors  braved  the  power  of  oppression  at  home. 

In  the  court  where  we  are  now  met,  Cromwell  twice  sent  a satir- 
ist on  his  tyranny  to  be  convicted  and  punished  as  a libeler;  and  in 
this  court,  almost  in  sight  of  the  scaffold  streaming  with  the  blood 
of  his  sovereign,  within  hearing  of  the  clash  of  his  bayonets  which 
drove  out  Parliament  with  contumely,  two  successive  juries  rescued 
the  intrepid  satirist  [Lilburne]  from  his  fangs,  and  sent  out  with 
defeat  and  disgrace  the  usurper’s  attorney-general  from  what  he 
had  the  insolence  to  call  his  court!  Even  then,  gentlemen,  when 
all  law  and  liberty  were  trampled  under  the  feet  of  a military  ban- 
ditti; when  those  great  crimes  were  perpetrated  on  a high  place 
and  with  a high  hand  against  those  who  were  the  objects  of  public 
veneration,  which,  more  than  anything  else,  break  their  spirits  and 
confound  their  moral  sentiments,  obliterate  the  distinctions  between 
right  and  wrong  in  their  understanding,  and  teach  the  multitude  to 
feel  no  longer  any  reverence  for  that  justice  which  they  thus  see 
triumphantly  dragged  at  the  chariot-wheels  of  a tyrant;  even  then, 
when  this  unhappy  country,  triumphant,  indeed,  abroad,  but  en- 
slaved at  home,  had  no  prospect  but  that  of  a long  succession  of 
tyrants  wading  through  slaughter  to  a throne — even  then,/  say^when 
all  seemed  lost,  the  unconquerable  spirit  of  English  liberty  survived  in 
i '.e  hearts  of  English  jurors.  That  spirit  is,  I trust  in  God,  not  ex- 


IN  BEHALF  OF  JEAN  PELTIER. 


611 


linct;  and,  if  any  modern  tyrant  were,  in  the  drunkenness  of  his  ' 
insolence,  to  hope  to  overawe  an  English  jury,  I trust  and  I believe 
that  they  would  tell  him:  ‘‘Our  ancestors  braved  the  bayonets  of 
Cromwell;  we  bid  defiance  to  yours.  Contempsi  Catilme  gladios — 
non  pertimescam  tuosi”' 

What  could  be  such  a tyrant’s  means  of  overawing  a jury  ? As 
long  as  their  country  exists,  they  are  girt  round  with  impenetrable 
armor.  Till  the  destruction  of  their  country,  no  danger  can  fall 
upon  them  for  the  performance  of  their  duty,  and  I do  trust  that 
there  is  no  Englishman  so  unworthy  of  life  as  to  desire  to  outlive 
England.  But,  if  any  of  us  are  condemned  to  the  cruel  punishment 
of  surviving  our  country — if,  in  the  inscrutable  counsels  of  Provi- 
dence, this  favored  scat  of  justice  and  liberty,  this  noblest  work  of 
human  wisdom  and  virtue,  be  destined  to  destruction,  which  I shall 
not  be  charged  with  national  prejudice  for  saying,  would  be  the 
most  dangerous  wound  ever  inflicted  on  civilization;  at  least  let  us 
carry  with  us  into  our  sad  exile  the  consolation  that  we  ourselves 
have  not  violated  the  rights  of  hospitality  to  exiles — that  we  have 
not  torn  from  the  altar  the  suppliant  who  claimed  protection  as  the 
voluntary  victim  of  loyalty  and  conscience. 

Gentlemen,  I now  leave  this  unfortunate  gentleman  in  your 
hands.  His  character  and  his  situation  might  interest  your 
humanity;  but,  on  his  behalf,  I only  ask  justice  from  you.  I only 
ask  a favorable  construction  of  what  cannot  be  said  to  be  more 
than  ambiguous  language,  and  this  you  will  soon  be  told,  from  the 
highest  authority,  is  a part  of  justice. 


The  attorney-general  then  closed  the  case  for  the  Crown.  He  began  by  re- 
ferring to  the  speech  of  the  opposing  counsel.  He  said  : “ In  rising,  gentlemen, 
“to  address  myself  to  you,  on  the  part  of  the  prosecution,  after  your  attention 
“has  been  so  long  rivetted  to  one  of  the  most  splendid  displays  of  eloquence  I 
“ ever  had  occasion  to  hear  ; after  your  understandings  have  been  so  long  daz- 
“ zled  by  the  contemplation  of  that  most  splendid  exhibition,  I cannot  but  fear 
“ that,  whatever  the  feeble  light  of  such  understandings  as  mine  present  to  you,  I 
“ can  scarcely  feel  a hope  of  making  any  impression  on  your  senses.  And  if  I 
“felt,  on  this  occasion,  that  there  was  any  necessity  to  answer  much  of  my 
“learned  friend’s  speech,  I should  feel  myself  embarked  in  an  undertaking  in 
“which  it  was  absolutely  necessary  I should  fail.”  ^^'hen  he  had  finished 

5 “ Defend!  rempublicam  adolescens  ; non  de<5eram  senex  : contempsi  Catilinae  gladios  ; 
non  pertimescam  tuos.”— I defended  the  republic  in  mv  youth,  1 will  not  desert  her  in  my 
age;  I have  despised  the  daggers  of  Catiline,  and  I shall  nui  tear  yours.— [Cicero  to  An* 
thony,  at  the  close  of  his  second  oration  against  him.] 


612 


SPEECH  OF  SIR  JAMES  MACKINTOSH, 


his  address,  Eord  Ellenborough  charged  the  Jury  strongly  against  the  prisoner. 
He  took  occasion  to  say:  “ Gentlemen,  I trust  your  verdict  will  strengthen  the 
“relations  by  which  the  interests  of  this  country  are  connected  with  those  of 
“France,  and  that  it  will  illustrate  and  justify,  in  every  quarter  of  the  world,  ihe 
“conviction  that  has  been  long  and  universally  entertained  of  the  unsullied 
“purity  of  British  judicature,  and  the  impartiality  by  which  their  decisions  are 
“uniformly  governed.”  The  jury,  without  retiring  from  the  box,  immediately 
relumed  a verdict  of  guilty. 


SPEECH  OF  WILLIAM  C.  PLUNKET. 


Opening  for  the  Crown  in  Rex  v,  Forbes  and  Others.- 
Conspiracy  and  Riot. 


IN  THE  COURT  OF  KING’S  BENCH,  DUBLIN,  HILARY  TERM, 
3D  GEORGE  IV,  FEBRUARY  3d,  1823. 


Analysis  of  Mr.  Plunket’s  Speech. 


I.  Nature  of  the  offense  charged. — Object  of 
the  prosecution. 

8.  Motive  of  the  Attorney-General  in  filing 
an  ex  ojfficio  information. 

3.  The  legality  of  the  proceeding. 

4.  Statement  of  the  case  relied  upon  as  a 

precedent. 

5.  The  charges  not  intended  as  a protest 

against  the  Society  of  Orangemen. 

6.  Panegyric  on  W^illiam  of  Orange. 

7.  Political  events  in  which  the  conspiracy 

had  its  origin. 


8.  William’s  campaign  in  Ireland  conferred 

upon  its  people  blessings  in  disguise. 

9.  The  visit  of  George  IV  to  Ireland. 

10.  Lord  Wellesley  commended.— Defense 

of  his  character. 

11.  The  object  of  Lord  W’ellesley  in  prevent- 

ing the  decoration  of  King  William’s 
statue. 

12.  Legal  methods  resorted  to  as  the  only 

means  of  preventing  it. 

13.  Narration  of  the  facts  constituting  the 

charges  against  the  defendants. 

14.  The  action  of  the  attorney-general  an 

exercise  of  wise  discretion. 


About  no  figure  in  history  have  clustered  such  bitter  memories  and  deadly 
feuds,  as  are  associated  with  Macaulay’s  favorite  hero,  the  Prince  of  Orange, 
afterwards  William  the  Third.  As  no  man  has  ever  won  more  genuine  and 
profound  admiration  and  reverence,  so  none  has  ever  occasioned  more  deep- 
seated  and  lasting  animosities.  The  recollections  of  his  campaign  in  Ireland  are 
the  fruitful  theme  of  religious  strife,  which  has  been  kept  alive  till  our  own  time. 
No  battle  has  ever  been  fought,  the  anniversary  of  which  has  been  so  enthusias- 
tically observed,  as  the  battle  of  the  Boyne.  It  is  celebrated  in  song  as  well  as  in 
story,  and  the  stirring  music  is  invariably  the  signal  for  violence  and  bloodshed. 
As  often  as  the  anniversary  recurs,  the  calendars  of  criminal  courts,  not  only  in 
Ireland,  but  elsewhere,  exhibit,  as  a legitimate  sequel,  numerous  informations 
and  indictments  for  murder  and  assault,  and  the  unfortunate  sufferers,  go  to 
swell  the  long  list  of  killed  and  wounded,  who  have,  from  time  to  time,  revived 
the  memory  of  this  famous  engagement.  And  this  spectacle,  strange  as  it  may 
seem,  is  frequently  repeated  on  the  12th  of  July,  in  our  country  and  in  our 
own  age. 

It  is  also  true  that  the  political  results  of  the  battle  of  the  Boyne  are  still 
felt  in  Ireland.  Penal  laws  against  Catholics  have  disgraced  the  English  statute 
book  for  more  than  a century.  Consequently  Irish  politics  became,  in  one  sense, 
narrowed  to  an  issue  between  Catholics  and  Anti-Catholics;  the  friends  of  the 

[613] 


614 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


former,  among  whom  were  very  many  staunch  Protestants,  advocated  the  re- 
moval of  political  disabilities  from  their  oppressed  countrymen,  and  demanded 
the  complete  restoration  of  their  civil  and  constitutional  rights. 

William  Conyngham  Plunket,  the  son  of  a Presbyterian  minister,  became 
attached  to  the  liberal  party,  and  labored  consistently  throughout  his  long  and 
honorable  career  for  Catholic  emancipation.  When  George  the  Fourth  came  to 
the  throne,  he  paid  a friendly  visit  to  Ireland,  and  was  received  everywhere  with 
the  most  profound  reverence  and  enthusiasm  by  men  of  all  parties  and  sects. 
He  sent  Lord  Wellesley  to  Ireland,  as  Lord  Lieutenant,  and  that  minister  de- 
termined to  treat  all  men  alike,  without  respect  to  creed  or  opinion.  He  de- 
sired, if  possible,  to  break  the  ascendency  of  the  Orange  society,  because  he 
believed  that  its  custom  of  celebrating  the  achievements  of  King  William  tended 
to  keep  fresh  the  bitterness  of  religious  feuds. 

In  a public  square  in  the  city  of  Dublin,  known  as  College  Green,  stands  a 
statue  of  William  the  Third.  For  years  it  had  been  the  custom  of  the  Orange- 
men to  show  their  respect  for  the  memory  of  the  illustrious  monarch  by  decorat- 
ing this  image  on  the  4th  of  November,  in  honor  of  his  birth,  and  the  12th 
of  July,  in  honor  of  his  victory  at  the  Boyne.  Lord  Wellesley  determined  to 
abolish  these  ceremonies,  and  finally  resorted  to  legal  methods  to  accomplish  his 
purpose.  This  course  aroused  the  hatred  and  indignation  of  a certain  element 
of  the  Protestant  community.  In  order  to  show  their  contempt  for  the  Lord 
Lieutenant,  a number  of  Orangemen  arranged  to  insult  him  publicly.  They 
seized  the  opportunity  of  his  visit  to  the  theatre.  On  the  evening  of  December 
14th,  1822,  they  early  assembled  in  the  galleries,  and  began  to  hiss  and  hoot  as 
soon  as  the  Lord  Lieutenant  entered;  and  after  he  had  taken  his  seat  in  the  box, 
hurled  at  him  all  sorts  of  missiles.  One  of  the  party  threw  an  empty  whisky 
bottle,  which  struck  the  chair  on  which  Lord  Wellesley  sat,  and  glanced  off  on 
to  the  stage.  From  this  circumstance  the  affair  was  known  as  the  “bottle  riot.” 
The  parties  were  arrested,  but  such  was  the  state  of  public  feeling  that  the  grand 
jury  threw  out  the  indictments  and  refused  to  find  a true  bill  against  them. 

Notwithstanding  the  popular  sentiment,  Mr.  Plunket  determined  to  sustain 
the  dignity  of  his  friend,  the  Lord  Lieutenant,  and  resolutely  assumed  the  re- 
sponsibility of  filing,  in  his  official  capacity  as  attorney-general,  an  ex  officio 
information  against  the  accused,  under  which  they  were  brought  to  trial  on  the 
3d  of  February,  1824,  in  the  Court  of  King’s  Bench,  in  the  city  of  Dublin.’ 

Lord  Plunket,  as  a lawyer,  was  considered  the  leader  of  the  Dublin  bar  at 
its  golden  age;  as  an  advocate  he  was  comparable  only  with  Erskine;  as  a states- 
man he  ranked  among  the  foremost  of  his  age;  as  an  orator  he  has  not  been  sur- 
passed by  any  of  its  contemporaries.  “ His  oratory,”  says  a writer  in  the  Edin- 
burgh Review,  “was  of  a very  high  kind;  in  perfect  mastery  of  the  topics  it 
touched;  in  fullness  and  accuracy  of  information;  in  reasoning,  not  rapid  and 
vehement,  but  earnest,  vigorous  and  sustained;  in  the  dignity  and  propriety  of 
its  diction,  and  in  the  occasional  beauty  of  its  illustrations — it  has  not  been  ex- 
celled in  the  British  Senate.”  As  a chancery  lawyer  he  was  unrivaled,  and  Sheil 
has  remarked,  that  his  arguments  in  important  equity  causes  were  most  extraordi- 

’ For  a statement  of  the  details  of  the  charge,  names  of  the  prisoners,  the 
counsel,  and  the  justices  who  presided,  see  post,  pp.  641,  642. 


IN  TvEX  V.  FORBES  AND  OXnERS. 


615 


nary  exhibitions  of  human  intellect.  Through  the  tedious  mazes  of  purely  legal 
discussion,  his  poetical  fancy  never  forsakes  him,  but  enriches  his  speech,  like 
exquisite  gilding.  The  following,  from  one  of  his  arguments,  illustrates  his  deli- 
cate fancy.  Referring  to  the  wisdom  of  the  rule  that  long  possession  raises  a legal 
presumption  as  to  the  validity  of  the  title,  he  said:  “ Time  is  the  great  destroyer 
of  evidence,  but  he  is  also  the  great  protector  of  titles.  If  he  comes  with  a scythe 
in  one  hand  to  mow  down  the  muniments  of  our  possessions,  he  holds  an  hour- 
glass in  the  other  from  which  he  incessantly  metes  out  the  portions  of  duration 
that  are  to  render  those  muniments  no  longer  necessary.” 

His  speech  on  the  present  occasion  contains  many  beautiful  and  striking  il- 
lustrations, and  displays  his  wonderful  skill  and  ability  as  an  advocate.  In  order 
not  to  make  his  remarks  odious  to  the  majority,  he  abstains  from  fierce  denunci- 
ation against  the  Orange  societies,  and  pays  a tribute  to  the  memory  of  King 
William,  which,  for  graceful  and  elegant  expression,  is  worthy  of  his  great  powers 
as  an  advocate  and  orator.  This  case  is  rendered  more  interesting  from  the  fact 
that  his  conduct  in  presenting  the  ex  officio  information  against  the  accused,  after 
the  grand  jury  had  refused  to  find  a bill,  was  made  the  subject  of  a motion  for  a 
vote  of  censure  in  the  House  of  Commons,  and  Plunket’s  vindieation  on  that  oc- 
casion was  complete  and  overwhelming.  He  literally  carried  everything  before 
him,  and  his  address  in  his  own  defense  has  been  regarded  as  one  of  the  most 
impassioned  specimens  of  eloquence  ever  delivered  in  Parliament.  He  closed 
with  these  simple  words:  “ My  public  conduct  and  private  character  have  been 
alike  assailed.  I will  retire,  so  that  the  House  may  more  freely  and  unrestrain- 
edly consider  the  question.  My  public  conduct  I consign  to  the  justice  of  this 
House;  my  private  character  I leave  to  its  honor.”  In  opening  for  the  Crown, 
Mr.  Plunket  said  : 


My  Lords,  and  Gentlemen  of  the  Jury: — It  becomes  now 
my  duty  to  lay  before  you  the  case  on  behalf  of  the  Crown,  and  to 
put  you  in  possession  of  the  grounds  on  which  the  present  prosecu- 
tion has  been  instituted,  and  of  the  evidence  by  which  it  is  in- 
tended to  be  supported.  It  has  often  been  my  lot,  in  the  eventful 
history  of  this  country,  to  appear  in  the  character  of  a public 
prosecutor,  and  still  more  frequently  to  be  a witness  of  the  course 
and  conduct  of  public  prosecutions.  But  certainly  never  in  my 
life  have  I approached  a court  of  justice  with  sensations  of  more 
deep  anxiety,  or  with  a more  intense  feeling  of  the  importance  of 
the  subject  to  be  decided  on,  than  I feel  at  the  present  moment. 
It  is  a case,  my  Lords  and  gentlemen,  not  touching  the  life  of  the 
parties;  the  offense  as  laid  amounting  only  to  a misdemeanor.  It 
is  undoubtedly,  however,  to  them  a case  of  no  small  importance; 
involving  them,  if  the  facts  charged  be  proved,  in  very  heavy  penal 
consequences.  But  with  respect  to  the  public  at  large,  it  is  a case 
of  as  deep  and  vital  importance,  as  for  the  last  fifty  years  has  been 
brought  under  the  consideration  of  a court  and  of  a jury.  It  is  a 


G16 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUXKET 


great  satisfaction  to  me,  and  a great  part  of  my  object  has  been 
achieved  in  knowing  that  this  case  is  now  ready  to  be  brought  fully 
before  an  intelligent  court  and  jury;  and  that,  whatever  its  merits 
may  be,  it  is  impossible  they  can  be  stifled  or  extinguished,  but 
must  be  fairly  brought  under  the  consideration  of  the  court,  the 
jury,  and  the  public. 

I.  Nature  of  the  offense  charged. — Object  of  the 

PROSECUTION. 

The  charge  is  one  of  no  light  or  ordinary  character.  You  are 
already,  my  Lords,  probably  apprized  of  itTrom  public  rumor;  the 
nature  of  it  has  been  more  particularly  stated  by  my  learned  friend 
who  has  opened  the  informations.  It  imports  no  less  a crime  than 
having  assaulted  the  person  of  the  king’s  representative  in  this 
country;  of  having  committed  a riot  in  his  presence  for  the  purpose 
of  insulting  him;  and  of  having  done  so  in  pursuance  of  a deliber- 
ate conspiracy  previously  entered  into  for  the  purpose. 

This  is  a charge  which  ought  not  lightly  to  be  made;  and  one, 
gentlemen,  on  which  you  ought  not  to  act,  unless  fully  and  dis- 
tinctly proved.  But  I should  consider  it  as  an  insult  to  your  char- 
acter and  understandings,  to  urge  any  argument  to  establish  the 
enormity  of  the  crime,  if  fully  ascertained  to  have  been  committed. 
I should  blush  for  our  country,  were  it  necessary  to  state  in  a court 
of  justice,  that  a deliberate  insult  of  the  king’s  representative,  in  a 
public  theatre,  the  result  of  a previous  conspiracy,  is  no  light  or 
trivial  or  ordinary  offense.  In  the  mind  of  every  man  who  has  not 
banished  the  feelings  of  a gentleman,  and  who  is  not  lost  to  every 
public  and  private  consideration,  there  can  be  but  one  sentiment — 
a deep  sense  of  indignity  at  the  outrage,  and  an  entire  conviction 
of  the  necessity  of  vindicating  the  national  character  and  the  dig- 
nity of  the  laws,  by  affixing  punishment,  if  deserved. 

But,  my  Lords,  daring  and  unexampled  as  is  the  crime,  I hesi- 
tate not  to  say,  that  the  enormity  of  the  act  is  lost  in  the  boldness 
and  description  of  the  motives.  I fairly  tell  you  that  I come  not 
here  on  the  part  of  Lord  Wellesley,  to  ask  for  personal  redress,  or 
even  to  call  for  public  justice  so  far  as  he  is  personally  concerned; 
not  even  on  the  part  of  the  Lord  Lieutenant  of  Ireland,  to  seek 
atonement  for  the  outrage  committed  against  the  king’s  representa- 
tive; but  on  behalf  of  the  country  and  its  laws;  on  behalf  of  its 
hopes  of  peace  and  safety;  to  claim  your  aid,  backed  by  all  the 
authority  of  opinion,  in  putting  down  a desperate  and  insolent 


IN  REX  V.  FORBES  AND  OTHERS. 


617 


attempt  to  overawe  the  king’s  government  in  Ireland;  and  to  com- 
pel his  representative,  by  the  arm  of  personal  violence  and  by  the 
demonstration  of  a force  above  the  law,  to  change  the  measures  of 
his  government.  I call  on  you  to  put  down  a base  conspiracy  of  a 
contemptible  gang,  who  have  associated  to  put  down  the  laws  and 
to  overbear  the  king’s  representative,  because  he  has  presumed  to 
execute  the  king’s  commands.  I think  I know  the  feelings  of  the 
illustrious  personage  against  whom  this  villainy  has  been  directed; 
with  respect  to  his  own  personal  safety,  much  as  it  has  been  en- 
dangered, the  attack  was  fitted  only  to  rouse  his  gallant  mettle;  in- 
dignant as  he  must  have  felt  to  be  “ hawked  at  ” by  such  “ mousing  ” 
owls  as  these,  their  base  attempt  excited  no  terror,  it  left  no  resent- 
ment. That  there  should  have  been  in  this  land  hearts  capable  of 
conceiving,  and  hands  capable  of  executing,  such  an  outrage  against 
their  countryman,  must  have  excited  sensations  of  regret  and  pain; 
but  in  this  respect  the  national  character  has  been  redeemed  by  the 
universal  expression  of  indignation  which  has  issued  from  the  hearts 
of  the  Irish  people. 

But,  beyond  all  this,  much  remains  to  be  done:  it  is  necessary 
to  put  down  the  daring  pretensions  of  those  who  have  associated 
themselves  for  the  purpose  of  defying  the  king  and  the  law,  and 
setting  up  an  authority  superior  to  them  both.  They  and  all  others 
who  announce  such  projects,  must  be  taught  that  their  plans  are 
vain  and  hopeless,  as  they  are  insolent. 

This  I freely  avow  as  my  object.  I trust  that  no  unworthy 
prejudices,  that  no  angry  feeling,  that  no  sentiment  other  than  that 
which  belongs  to  the  conscientious  discharge  of  public  duty,  has 
been  suffered  to  mingle  itself  in  the  course  of  public  justice.  I 
shall  go  away  from  this  court,  humiliated  and  under  the  heavy  sen- 
tence of  self-reproach,  if,  after  the  evidence  in  this  case  shall  have 
been  disclosed,  any  honest  or  impartial  man  shall  censure  me  for 
instituting  this  prosecution;  or  shall  hesitate  to  think  that  it  would 
have  been  a mean  abandonment  of  duty  to  have  shrunk  from  it. 

2.  Motive  of  the  attorney-general  in  filing  an  ex  officio 

INFORMATION. 

You  are  apprized,  my  Lords,  that  this  is  an  ex  officio  informa- 
tion filed  by  his  majesty’s  attorney-general  upon  his  own  authority; 
you  are  also  probably  aware,  that  this  ex  officio  information  has 
been  filed  after  bills  had  been  preferred  against  the  same  persons 
for  the  same  offense,  and  had  been  ignored  by  a grand  jury  of  the 


G18 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


country.  Before  I proceed  to  trouble  your  lordships  with  any  ob- 
servation upon  the  exact  nature  and  on  the  legality  of  this  proceed- 
ing, I wish  to  disembarrass  the  case  of  a few  topics  which  may  at- 
tach to  it.  In  the  proceeding  which  I have  thought  it  my  duty  to 
institute,  though  I have  been  governed  by  my  strong  impression 
that  public  justice  had  not  been  effected,  I do  not  involve  in  this 
conclusion  any  imputation  on  the  sheriff  who  returned  the  grand 
jury,  still  less  on  the  grand  jury  themselves  who  have  acted  on  their 
oaths  in  throwing  out  those  bills.  For  the  purposes  of  the  present 
trial,  whatever  opinions  I may  entertain  on  that  subject,  I have  no 
right  to  advert  to  them.  The  sheriff  who  returned  that  grand  jury 
is  not  on  his  trial,  and  it  would  be  gross  injustice  to  arraign  his 
conduct  when  he  cannot  defend  it.  The  grand  jury  are  not  on 
their  trials,  and  it  would  be  injustice  equally  gross  to  make  a charge 
against  them  where  they  can  have  no  opportunity  of  vindicating 
themselves.  A time  may  come  and  an  occasion  may  arise  in  which 
these  considerations  may  be  proper  and  necessary;  and  most  cer- 
tainly I will  not,  in  that  event,  “be  found  wanting  to  the  discharge 
of  any  duty,  however  painful,  which  may  devolve  on  me.  But  in 
the  meantime,  and  with  reference  to  the  present  proceeding,  I wish 
distinctly  to  be  understood  as  disclaiming  all  imputations  upon 
either.  I am  ready  to  suppose,  for  the  purposes  of  this  trial,  that 
if  the  parties  and  the  cause  were  the  exact  reverse  of  what  they  now 
are;  that  if  it  had  been  the  pleasure  of  the  government  to  direct 
that  the  statue  of  King  William  should  be  dressed  on  the  4th  of 
November,  and  a body  of  Roman  Catholics,  feeling  themselves  in- 
sulted, had  risen  against  the  law  and  the  magistracy,  and  had  flung 
a bottle  or  other  missile  at  the  Lord  Lieutenant’s  head,  and  these 
facts  had  been  before  the  grand  jury,  they  would  have  ignored  the 
bills;  as,  so  help  me  God,  I would,  under  the  same  circumstances, 
had  I remained  the  king’s  attorney-general,  have  filed  my  informa- 
tion ex  officio.  I claim  only  for  myself  equal  credit  for  the  purity 
of  my  motives  and  the  fair  discharge  of  my  sworn  duty. 

3.  The  legality  of  the  proceeding. 

I am  told  that  it  has  been  alleged  that  this  proceeding  on  the 
part  of  the  attorney-general,  by  an  ex  offiicio  information,  is  illegal. 
I do  not  knov/  whether  what  has  been  said  in  this  respect  has  been 
rightly  reported;'  or  whether  it  is  meant  that  the  proceeding  is  in 
point  of  law  invalid,  or  that  the  resorting  to  it,  though  a legal  right, 
is  not  a fair  exercise  of  discretion.  I am  led  naturally,  without 


IN  REX  V.  FORBES  AND  OTHERS. 


G19 


going  out  of  the  pleadings,  to  make  a few  observations  upon  this 
part  of  the  subject;  for  although  all  the  traversers  have  put  in  pleas 
amounting  to  not  guilty,  yet  two  of  them  have  thought  proper  to 
put  upon  the  record  what  cannot  properly  belong  to  that  plea — a 
sort  of  preamble  or  inducement,  in  which  they  state  that  those  in- 
formations have  been  filed  against  them  after  a grand  jury  had 
ignored  bills  for  the  same  charge.  My  learned  friends,  who  framed 
those  defenses,  knew  perfectly  well  that  on  that  allegation  no  issue 
could  be  joined,  either  of  law  or  of  fact.  It  amounts,  therefore,  to 
nothing  else  than  a plea  of  not  guilty.  But  I presume  they  thought 
it  might  be  made  use  of  (though  scarcely  to  your  lordships  or  the 
jury  whom  I address)  to  swell  the  cry  which  amongst  the  vulgar  of 
the  public  has  been  raised  against  the  legality  of  this  proceeding. 

I think  that  on  that  subject  I need  occupy  but  little  time  in  ad- 
dressing the  court  before  which  I have  now  the  honor  to  appear. 
What  I am  about  to  say  is  rather  with  a view  to  set  right  the  public 
mind,  and  that  it  should  be  known  that  I have  stated,  in  the  pres- 
ence of  this  enlightened  court,  what  is  the  law  upon  this  subject. 
I assert,  then,  that  the  ignoring  of  a bill  by  a grand  jury  is,  accord- 
ing to  the  known  and  established  principles  of  our  law,  no  bar  to 
any  subsequent  legal  proceeding  against  the  same  individual  for  the 
same  offense.  It  is  competent  to  the  Crown  or  the  prosecutor  to 
send  up  another  bill  to  the  same  or  any  other  grand  jury;  and  the 
same  power  belongs  to  that  public  authority  in  which  is  vested  the 
right  of  filing  an  information.  A party  who  has  been  already  tried 
may  protect  himself  against  a subsequent  prosecution  for  the  same 
offense.  He  may  do  so  by  plea.  It  is  a principle  of  our  law  that 
no  man  shall  be  twice  tried  for  the  same  offense.  If  he  has  been 
already  acquitted,  there  is  a known  legal  form  of  pleading  as  old  as 
the  law  itself,  by  which  he  can  defend  himself.  But  it  is  settled 
by  authorities  coeval  with  the  law  itself,  that  the  plea  of  autrefois 
acquit  is  not  supported  by  evidence  that  a bill  of  indictment  for 
the  same  offense  has  been  preferred  to"  a grand  jury,  and  ignored. 
It  must  be  an  acquittal  by  a petit  jury.  Your  lordships  would  con- 
sider it  a waste  of  time  to  refer  to  authorities  in  support  of  such  a 
position.  It  is  laid  down  by  Lord  Hale,  Lord  Coke,  and  every 
writer  on  the  subject  of  Crown  law.  I shall  not  consume  time  by 
adverting  to  cases  for  recognition  of  known  principles.  The  thing 
can  only  be  doubted  by  those  who  are  ignorant  of  our  laws  and 
Constitution.  That  another  indictment  could  be  sent  up  is  clear; 
and  I think  I go  a good  way  to  show  its  legality  by  calling  upon 


620 


SPEECH  OF  WILLIAM  COA'YA'GHAM  PLUNKET 


those  who  deny  it,  to  show  me  any  form  of  pleading  by  which  it 
can  be  resisted.  There  is  no  legal  right  belonging  to  any  subject 
of  this  realm,  which  the  law  has  not  afforded  him  a mode  of  setting 
forth;  and,  therefore,  if  there  be  no  form  of  pleading  (and  if  there 
were  such,  my  learned  friends,  in  whose  hands  the  interests  of  the 
traversers  are  so  effectually  secured,  would  have  discovered  it)  by 
which  the  throwing  out  of  a bill  by  a grand  jury  may  be  set  up  as 
a bar  to  a subsequent  information,  that  is  in  itself  a full  proof  of 
the  legality  of  such  a proceeding.  They  have,  indeed,  distinctly 
admitted  it  by  putting  in  pleas  not  denying  the  competence  of  the 
attorney-general  to  file,  or  of  the  court  to  entertain,  the  present 
information,  but  asserting  their  innocence  of  the  charge  imputed  to 
them.  In  an  ordinary  case,  not  affecting  the  rights  of  the  Crown,  this 
court  is  in  the  habit  of  granting  criminal  informations.  The  right 
formerly  exercised  by  the  master  in  the  Crown  office  has  been  narrowed 
by  statute,  and  is  now  subject  to  the  discretion  of  the  court.  Has  it 
ever  been  heard  of  that  the  Court  of  King’s  Bench  would  refuse  an 
information  because  a grand  jury  had  ignored  the  bill  ? 

So  much  trash  has  been  circulated,  and  the  public  mind  so  much 
abused  upon  this  subject,  that  I hope  your  lordships  will  excuse  my 
calling  your  attention  to  it.  So  far  from  its  being  considered  an  ob- 
jection that  a grand  jury  has  ignored  the  bill,  it  is  often  a reason  why 
the  Court  of  King’s  Bench  grants  an  information.  I have  often  ap- 
plied for  liberty  to  file  an  information,  when  I had  the  honor  of  prac- 
ticing in  this  court;  and  the  court  has  asked  me  whether  I had  tried 
a grand  jury,  saying,  that  if  they  refused  to  find  a bill,  they  would 
then  entertain  the  application.  The  Court  of  King’s  Bench  in 
England,  in  the  last  term,  granted  an  information  in  a case  where 
bills  had  been  twice  ignored  by  a grand  jury,  and  because  they  had 
been  ignored.  So  far,  therefore,  is  that  circumstance  from  being 
considered  an  objection  to  putting  a party  on  his  trial,  that  it  is 
frequently  insisted  upon  as  a requisite  condition.  Thus  it  is  where 
application  is  made  to  the  Court  of  King’s  Bench.  This  is  an  in- 
formation filed  by  the  sworn  officer  of  the  Crown,  in  whom  the  law 
has  vested  that  privilege.  Were  I to  come  in  as  attorney-general, 
and  apply  for  liberty  to  file  an  information  against  these  parties, 
what  would  be  your  lordships’  answer  ? The  same  as  was  given  by 
my  Lord  Mansfield  to  De  Grey,  and  I think  to  Sir  Fletcher  Norton, 
namely:  “We  will  not  file  an  information  at  your  suit;  the  law  has 
made  you  the  sole  judge  of  its  propriety;  if  you  think  it  proper, 
you  have  a right  to  file  it;  if  not,  why  should  we  do  so?”  I am 


IN  REX  V.  FORBES  AND  OTHERS. 


621 


not  now  applying  myself  to  the  soundness  of  this  exercise  of  dis- 
cretion, but  to  the  new-fangled  notion  of  the  illegality  of  this  in- 
formation. It  is  the  privilege  of  the  lowest  subject  in  the  realm, 
if  by  the  error  or  impropriety  of  a grand  jury  he  do  not  obtain 
justice,  to  apply  to  the  Court  of  King’s  Bench  for  a criminal  in- 
formation; but  the  king,  it  is  said,  is  to  be  in  a totally  different 
situation;  and  though  for  an  offense  indictable  the  court  would 
grant  an  information  because  a grand  jury  has  ignored  the  bill,  the 
sovereign  himself  shall  not  have  that  redress  which  is  open  to  the 
meanest  of  his  subjects.  A proposition,  this,  too  monstrous  to  bear 
debate.  I am  asked  for  an  authority;  permit  me  to  say,  this  is  not 
quite  a fair  requisition.  Where  a circumstance  is  totally  imma- 
terial, it  is  not  to  be  expected  that  it  should  be  the  subject  of  no- 
tice; and  therefore  we  are  not  to  be  surprised,  if  in  the  greater 
number  of  reported  cases  of  informations  it  should  not  appear 
whether  a grand  jury  had  previously  thrown  out  bills  or  not.  Such 
a fact  would  be  totally  immaterial.  It  cannot  be  stated  in  a plea; 
it  could  not  be  proved  in  evidence,  and  therefore  it  would  be  too 
much  to  say,  that,  because  it  is  not  mentioned,  the  case  had  not  ex- 
isted. 

4.  Statement  of  the  case  relied  upon  as  a precedent. 

It  has  been  my  principle  to  hold  in  utter  contempt  the  vile  and 
scurrilous  publications  which  have  been  circulated  through  the 
city,  in  order  to  prejudge  the  matters  to  be  tried  and  affect  the 
characters  of  the  persons  employed  as  public  functionaries.  But 
I have,  by  the  generosity  of  some  of  their  authors,  been  furnished 
with  a case  directly  in  point,  in  which,  by  accident,  the  fact  of  bills 
having  been  ignored  by  the  grand  jury  before  the  information  filed 
does  distinctly  appear. 

I shall  detail  the  facts  as  they  appear  in  the  Commons’  Journals. 
In  the  latter  end  of  the  reign  of  Queen  Anne,  in  the  year  1713,  on 
King  William’s  birth-day,  the  play  of  Tamerlane  was  to  be  repre- 
sented. King  William,  as  your  lordships  are  aware,  was  compared 
to  Tamerlane,  and  very  deservedly  so,  if  the  possession  of  every 
virtue  that  could  ennoble  a monarch  entitled  him  to  the  distinction. 
The  name  of  Tamerlane  had  been  connected  with  his.  A prologue 
to  the  play,  written  by  Doctor  Garth,  was  very  generally  repeated 
at  the  time.  The  Doctor,  it  seems,  was  more  happy  as  a poet  than 
as  a courtier,  and  his  reverence  for  King  William  led  him  to  com- 
pliment that  monarch  in  terms  not  sufficiently  guarded  to  avoid 


C22 


SPEECH  OF  WILLIAM  CONYNGIIAM  PLUNKET 


giving  offense  to  Queen  Anne.  The  government,  therefore,  thought 
it  right  that  the  prologue  should  not  be  repeated.  When  the  play, 
therefore,  came  on  for  representation,  the  actor  omitted  to  repeat 
it,  and  by  so  doing  gave  great  offense  to  the  audience.  They  were 
full  of  respect  for  the  memory  of  William,  and  did  not  wish  that 
attention  to  Queen  Anne  should  break  in  on  the  ancient  practice. 
Mr.  Dudley  Moore,  a zealous  Protestant,  who  was  in  the  house, 
leaped  upon  the  stage  and  repeated  the  prologue.  This  gave  rise 
to  something  like  a riot.  The  government  indicted  Mr.  Moore  for 
the  riot.  The  bills  were  sent  up  to  a grand  jur}^,  who  returned  a 
true  bill,  and  were  then  dismissed.  In  about  half  an  hour  after,  the 
foreman  came  into  court  and  made  an  affidavit  that  billa  vera  was 
a mistake,  and  that  they  meant  to  return  ig7ioramus.  The  court 
refused  to  receive  his  affidavit;  but  then  came  in  the  three  and 
twenty,  and  swore  positively  to  the  same  fact  to  which  their  fore- 
man had  deposed.  The  party  was,  notwithstanding  this,  in  my 
opinion  very  unwisely,  put  to  plead  to  the  indictment.  But  the  ' 
attorney-general,  thinking  it  would  be  hard  to  compel  him  to 
plead  when  the  bill  had  been  in  fact  ignored,  moved  to  quash  the 
indictment,  which  was  done. 

Do  I overstate  the  matter  when  I say,  that  things  were  then  in 
the  same  situation  as  if  the  bill  had  been  ignored  by  the  grand  jury  ? 
And  yet,  under  these  circumstances,  the  attorney-general  thought 
himself  at  liberty  to  file  an  ex  officio  information  against  the  same 
person  for  the  same  offense.  Sir  Constantine  Phipps,  who  was 
then  Lord  Chancellor,  and  one  of  the  Lords  Justices,  was  consid- 
ered by  many  as  a great  Tory  and  Jacobite,  and  as  an  enemy  to 
the  Protestant  interest.  History  has  done  more  justice  to  him  in 
that  respect  than  in  the  heat  of  party  he  received  from  his  contem- 
poraries. He  interfered  with  the  prosecution;  he  sent  for  the  Lord 
Mayor  and  lectured  him  as  to  the  mode  in  which  he  was  to  con- 
duct himself.  He  was  even  supposed  to  have  interfered  with  the 
return  of  the  jury.  The  whole  matter  was  brought  before  the 
House  of  Commons,  who  addressed  the  throne  to  remove  Sir  Con- 
stantine Phipps  for  intermeddling  in  the  trial.  No  fault  was  found 
with  the  information  though  directly  before  them,  but  the  trial  was 
treated  as  legally  depending,  and  a petition  presented  against  the 
Chancellor  for  interfering  with  that  trial.  Do  I not  here  show  a 
case  in  which  an  ex  officio  information  had  been  filed  after  a bill 
had  been  thrown  out,  and  where  though  the  zeal  of  a party  gen- 
erated an  anxiety  to  lay  hold  of  anything  that  could  warrant  an 


IN  REX  V.  FORBES  AND  OTHERS. 


623 


imputation  on  the  proceeding  ? as  the  information  filed  was  never 
questioned,  but  the  Chancellor  and  Chief  Governor  petitioned 
against  for  interfering  with  the  proceeding. 

5.  The  charges  not  intended  as  a protest  against  the 
SOCIETY  OF  Orangemen. 

I shall  not  trouble  your  lordships  farther  upon  the  legality  of 
this  proceeding.  With  respect  to  the  soundness  of  the  exercise  of 
my  discretion  under  the  circumstances,  in  resorting  to  the  preroga- 
tive right,  I shall  reserve  myself  until  I shall  have  laid  before  the 
court  and  the  jury  the  facts  which  will  be  proved  in  the  case.  I 
have  already  said,  that  I will  prove  that  an  attempt  has  been  made 
by  a gang  in  this  city  for  the  purpose  of  controlling  the  law  and 
putting  down  the  authority  of  the  king’s  lieutenant.  It  is  unfor- 
tunately necessary  to  show,  that  the  individuals  concerned  in  this 
outrage  are  persons  belonging  to  a society  known  by  the  name  of 
the  Orange  Society.  But  it  is  particularly  necessary,  gentlemen  of 
the  jury,  that  you  and  the  court,  and  the  public,  should  understand 
what  was  formerly  uttered  by  me,  and  what  I now  repeat.  I am 
desirous  of  expressly  stating,  that  with  the  general  nature  of  the 
Orange  societies  in  relation  to  the  laws,  the  interests  and  happiness 
of  the  country,  I have  on  this  trial  nothing  to  do.  Upon  this  sub- 
ject I have  my  opinions,  which  at  a proper  place  and  season  I shall 
not  shrink  from  avowing.  But  with  the  present  investigation  they 
have  no  concern.  I do  believe  in  my  conscience,  that  the  greater 
proportion  of  the  persons  associated  in  that  society  feel  as  strong 
and  lofty  a contempt  for  those  concerned  in  this  disgraceful  attack 
as  I do,  and  are  as  incapable  of  participating,  authorizing,  vindi- 
cating, or  palliating  it.  Every  public  man  must  expect  to  be  the 
subject  of  no  very  candid  criticism.  I wish  distinctly  to  have  it 
understood,  that  this  is  no  after-thought  of  mine,  for  the  purpose 
of  qualifying  expressions  either  inadvertently  or  too  strongly  used. 
Had  I applied  these  expressions  indiscriminately  to  the  Orangemen 
of  Ireland,  I should  have  violated  my  duty  and  stepped  beyond 
that  line  of  conducting  this  prosecution  which  was  distinctly  agreed 
upon  between  me  and  the  eminent  and  respectable  persons  by 
whom  I have  b^en  advised.  I am  glad  to  take  this  opportunity 
once  for  all,  of  returning  my  thanks  to  my  learned  colleague,  by 
whose  high  talents,  enlightened  information  and  extensive  knowl- 
edge I have  been  assisted  in  every  stage  of  this  proceeding,  and  to 


624 


SPEECH  OE  WILLIAM  CONYNGHAM  PLUNKET 


whose  cordial  zeal  and  co-operation  no  terms  can  be  too  strong  to 
render  justice  and  express  my  gratitude. 

6.  Panegyric  on  William  of  Orange. 

My  Lords,  I am  anxious  to  proceed  to  an  immediate  statement 
of  the  facts  in  this  case,  and  to  disperse  that  mass  of  scurrility  and 
falsehood  which  for  some  weeks  past  has  disgraced  this  city.  I 
must,  however,  first  trespass  on  your  time  with  some  preliminary 
observations. 

It  is  impossible  to  lay  this  case  truly  before  the  public  without 
briefly  reverting  to  the  political  events  in  which  the  conspiracy 
originated.  The  foundations  of  it  were  laid  so  long  back  as  the 
period  when  his  majesty  was  pleased  to  honor  this  country  with  his 
presence. 

It  is  not,  my  Lords,  my  intention  to  occupy  your  time  by  at- 
tempting a description  of  what  took  place  on  that  occasion.  From 
the  minds  of  those  who  witnessed  the  transaction,  the  splendor  and 
glory  of  that  day  never  can  be  effaced.  To  those  who  have  not, 
no  powers  of  mine  can  give  an  adequate  description.  It  falls  to 
me  to  have  the  less  pleasing  task  of  remarking,  that  even  then  some 
indications  were  to  be  found  that  his  majesty’s  gracious  disposi- 
tions were  not  likely  to  be  met  with  that  degree  of  gratitude  and 
respect  to  which  they  were  entitled;  and  that,  even  before  he  left 
the  Irish  shore,  the  elements  of  mischief  were  at  work.  It  was  un- 
derstood that  the  king,  before  he  honored  the  Mansion  House  with 
his  presence,  had  signified  his  desire  that  the  glorious  memory 
should  not  be  given  as  a toast.  I must  entreat  your  excuse,  my 
Lords  (it  connects  itself  intimately  with  the  matter  of  this  trial),  if 
I advert  more  particularly  to  this  topic,  and  endeavor  to  disabuse 
the  public  mind  upon  the  subject. 

Perhaps,  my  Lords,  there  is  not  to  be  found  in  the  annals  of 
history  a character  more  truly  great  than  that  of  William  the  Third. 
Perhaps  no  person  has  ever  appeared  on  the  theatre  of  the  world, 
who  has  conferred  more  essential  or  more  lasting  benefits  on  man- 
kind; on  these  countries  certainly  none.  When  I look  at  the  ab- 
stract merits  of  his  character,  I contemplate  him  with  admira- 
tion and  reverence.  Lord  of  a petty  principality;  destitute  of  all 
resources  but  those  with  which  nature  had  endowed  him;  regarded 
with  jealousy  and  envy  by  those  whose  battles  he  fought;  thwarted 
in  all  his  counsels;  embarrassed  in  all  his  movements;  deserted  in 


IN  REX  V.  FORBES  AND  OTHERS. 


625 


his  most  critical  enterprise;  he  continued  to  mould  all  those  dis- 
cordant materials,  to  govern  all  these  warring  interests,  and  merely 
by  the  force  of  his  genius,  the  ascendancy  of  his  integrity,  and  the 
unmovable  firmness  and  constancy  of  his  nature,  to  combine  them 
into  an  indissoluble  alliance  against  the  schemes  of  despotism  and 
universal  domination  of  the  most  powerful  monarch  in  Europe, 
seconded  by  the  ablest  generals,  at  the  head  of  the  bravest  and  best 
disciplined  armies  in  the  world,  and  wielding,  without  check  or 
control,  the  unlimited  resources  of  his  empire.  He  was  not  a con- 
summate general;  military  men  will  point  out  his  errors;  in  that 
respect  fortune  did  not  favor  him,  save  by  throwing  the  lustre  of 
adversity  over  all  his  virtues.  He  sustained  defeat  after  defeat,  but 
always  rose  adversa  rerum  immersabilis  unda.  Looking  merely  at 
his  shining  qualities  and  achievements,  I admire  him  as  I do  a 
Scipio,  a Regulus,  a Fabius;  a model  of  tranquil  courage,  undevi- 
ating probity,  and  armed  with  a resoluteness  and  constancy  in  the 
cause  of  truth  and  freedom,  which  rendered  him  superior  to  the 
accidents  that  control  the  fate  of  ordinary  men. 

7.  Political  events  in  which  the  conspiracy  had  its 

ORIGIN. 

But  this  is  not  all.  I feel  that  to  him,  under  God,  I am  at  this 
moment  indebted  for  the  enjoyment  of  the  rights  which  I possess 
as  a subject  of  these  free  countries.  To  him  I owe  the  blessings  of 
civil  and  religious  liberty,  and  I venerate  his  memory  with  a fervor 
of  devotion  suited  to  his  illustrious  qualities  and  to  his  godlike  acts. 

Did  our  gracious  sovereign  come  here  to  trample  on  the  memory 
of  the  most  illustrious  of  his  predecessors  1 No,  my  Lords;  the 
high  errand  on  which  he  landed  on  our  shores  was  worthy  of  him, 
and  bespoke  a kindred  mind  to  that  of  the  immortal  personage 
whose  name  and  character  he  vindicated.  He  knew  that  the  whole 
life  of  King  William  was  a continued  struggle  against  intolerance; 
that  the  policy  of  his  reign  was  opposed,  and  his  most  favorite  ob- 
jects for  the  peace  and  happiness  of  his  people  were  baffled  by  the 
folly  and  bigotry  of  those  who  surrounded  him;  and  that  the  career 
of  his  glorious  life  w*as  obstructed,  as  the  lustre  of  his  glorious 
memory  has  been  tarnished,  by  the  absurd  and  intolerant  dogma- 
tism of  those  who  were  rescued  by  his  exertions  from  that  yoke 
which  they  sought,  in  opposition  to  his  eager  wishes,  to  impose  on 
others.  It  was  the  unhappy  but  inevitable  result  of  the  circum- 
stances in  which  the  people  of  this  unfortunate  country  were 
40 


626 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


placed,  that  they  had  to  meet  that  great  man,  not  as  subjects  but 
as  enemies. 

The  peculiar  good  fortune  of  the  British  people  was,  that  every 
feeling  of  religion  corresponded  with  their  innate  love  of  freedom 
to  alienate  them  from  the  cause  of  the  exiled  monarch.  His  de- 
signs, his  determinations  against  their  civil  and  religious  liberties, 
were  notorious  and  unalterable.  An  inflexible  bigot  and  despot,  he 
was  too  intense  in  both  characters  to  endure  the  appearance  of  a 
compromise  with  toleration  or  with  freedom.  Yet  every  man 
knows  through  what  difficulties  and  dangers  they  had  to  struggle 
before  the  house  of  Brunswick  was  firmly  seated  on  the  throne. 
Even  with  the  full  tide  of  religion  running  in  their  favor,  the  prin- 
ciple of  loyalty  to  an  hereditary  succession  was  so  indigenous  to 
British  character,  that  it  was  not  until  after  the  lapse  of  nearly  a 
century  that  the  principles  of  Jacobitism  were  finally  subdued. 

8.  William’s  campaign  in  Ireland  conferred  upon  its  people 

BLESSINGS  IN  DISGUISE. 

But  in  unhappy  Ireland  the  exiled  king  was  the  professor  and 
patron  of  the  religion  to  which  they  were  enthusiastically  devoted. 
He  must  be  a preposterous  critic  who  will  impute  as  a crime  to  that 
unhappy  people,  that  they  did  not  rebel  against  their  lawful  king, 
because  he  was  of  their  own  religion,  even  if  they  had  been  so  fully 
admitted  to  the  blessings  of  the  British  Constitution  as  to  render 
them  equally  alive  to  the  value  of  freedom.  They  seem,  therefore, 
by  the  nature  of  things,  almost  necessarily  thrown  into  a state  of 
resistance.  Nothing  could  have  saved  them  from  it  but  so  strong 
a love  of  abstract  freedom  as  might  subdue  the  principles  of  loyalty 
and  the  feelings  of  religion.  No  candid  man  can  lay  so  heavily  on 
poor  human  nature,  nor  fairly  say  that  he  thinks  worse  of  the  Roman 
Catholic  for  having  on  that  day  abided  by  his  lawful  sovereign  and 
his  ancient  faith.  What  was  the  result  ? They  were  conquered; 
conquered  into  freedom  and  happiness — a freedom  and  happiness 
to  which  the  successful  result  of  their  ill-fated  struggles  would 
have  been  destructive.  There  is  no  rational  Roman  Catholic  in 
Ireland  who  does  not  feel  this  to  be  the  fact.  Even  the  name  of 
the  exiled  family  is  now  unknown;  the  throne  rests  on  the  firm 
basis  of  the  unanimous  recognition  of  the  entire  people.  The 
memory  of  their  unfortunate  struggles  is  lost  in  the  conviction  of 
the  reality  of  those  blessings  which  have  been  derived  from  their 
results  equally  to  the  conqueror  and  to  the  conquered.  What  wise 


REX  V.  FORBES  AND  OTHERS. 


627 


or  good  man  can  feel  a pleasure  in  recalling  to  the  minds  of  a 
people  so  circumstanced  the  fact  that  they  have  been  conquered  ? 
What  but  the  spirit  of  folly  and  of  mischief  can  take  a satisfaction 
m interrupting  them  in  the  enjoyment  of  the  blessings  of  their  de- 
feat, by  taunting  them  with  the  recollection  that  they  were  defeated  ? 
Why  is  conquest  desirable  to  any  one  but  the  Trooper  ? Because 
it  opens  the  way  to  peace  and  harmony;  but  to  those  I have  now 
to  deal  with,  the  fruits  of  the  conquest  are  valueless,  without  the 
perpetuation  of  the  triumph. 

He  is  a mischievous  man  who  desires  to  remind  the  people  of 
this  country  that  they  are  a conquered  people.  He  is  a mischiev- 
ous man  who,  for  the  gratification  of  his  own  whim,  desires  to  cele- 
brate, in  the  midst  of  that  people,  the  anniversary  of  their  conquest. 
Never  was  there  a subject  more  loudly  calling  for  and  justifying  the 
gracious  and  saving  interposition  of  the  royal  wisdom. 

9.  The  visit  of  George  IV  to  Ireland. 

In  the  history  of  royal  lives,  there  seldom  has  occurred  an  in- 
stance affording  a more  gratifying  subject  for  the  historian  to  dwell 
on,  than  the  royal  visit  to  Ireland.  The  statement  of  splendid  vic- 
tories, the  development  of  profound  schemes  of  policy,  the  appli- 
cation of  able  counsels  and  of  powerful  resources,  the  defense  of 
the  liberties  of  the  world — all  these  are  the  subjects  of  historic  de- 
tail, and  may  be  the  fair  subjects  of  political  controversy.  But 
here,  by  the  mere  impulse  of  his  own  feelings,  the  heartiness  of  his 
nature,  a moment  was  created  in  which,  without  calling  on  any  of 
the  common  places  of  royalty,  without  the  aid  of  force,  or  fear,  or 
flattery;  without  arms,  or  power,  or  patronage;  by  the  mere  in- 
dulgence of  his  kind  and  generous  nature,  he  gained  to  himself  the 
most  exalted  privileges  which  a human  being  can  exercise — that  of 
bestowing  happiness  on,  and  sharing  it  with,  millions  of  his  fellow- 
creatures.  The  promptness  with  which  this  moment  was  seized; 
the  gracious  and  condescending  manner  by  which  it  was  improved; 
the  thousand  and  ten  thousand  blessings  which  are  derived  from  it 
— all  these  may  be  subjects  of  just  applause  and  of  sober  criticism. 
But  here  the  true  value  of  the  act  is  its  simplicity.  To  enter  into 
the  hearts  and  become  master  of  the  enthusiastic  affections  of  an 
entire  people,  merely  by  showing  himself  the  friend  and  father  of 
them  all,  was  a felicity  to  him  and  them  unparalleled  in  the  event- 
ful history  of  this  nation.  It  was  worthy  of  a successor  of  the 
great  monarch  whose  talents  and  virtues  he  emulated,  and  whose 


628 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNZET 


memory  he  rescued  from  the  disgraceful  orgies  by  which  it  had 
been  tarnished.  Equal  in  the  motive  and  the  feeling — happier  in 
this  that  the  hard  fortune  of  William  the  Third  compelled  him  to 
visit  this  country  as  a conqueror;  but  it  was  reserved  for  the  pecu- 
liar felicity  of  George  the  Fourth,  that  he  was  the  first  British  king 
who  ever  placed  a friendly  footstep  upon  the  Irish  soil. 

I have  already  had  occasion  to  remark,  that  the  intimation  of 
his  majesty’s  pleasure  on  the  subject  of  public  concord  was  not 
perfectly  agreeable  to  a certain  portion  of  his  subjects.  Some  little 
clouds  were  seen  flitting  along  the  horizon,  which  indicated  the 
probability  of  a future  storm.  How  far  the  government  of  the 
country  were  enabled  to  act  on  the  personal  recommendation  and 
parting  injunction  of  the  king — what  were  the  difficulties  the 
Irish  government  had  to  encounter;  what  were  the  means  they 
used  to  surmount  them — these  are  matters  which  do  not  belong  to 
the  present  subject. 

lo.  Lord  WTllesley  commended. — Defense  of  his 

CHARACTER. 

I pass  to  the  period  of  Lord  Wellesley’s  arrival  in  this  country. 
He  found  a great  portion  of  the  South  of  Ireland  in  a state  of 
licentiousness,  surpassing  the  worst  excesses  of  former  unhappy 
times.  He  had  to  deal  with  dangerous  and  secret  conspiracies  in 
other  parts  of  the  country.  In  what  manner  the  Lord  Lieutenant 
applied  the  powerful  energies  of  his  great  mind  to  meet  these  com.- 
plicated  difficulties  does  not  fall  within  the  compass  or  limit  of  this 
trial.  It  would  ill  suit  with  my  notions  of  what  is  due  to  the  Mar- 
quis Wellesley,  and  of  his  temper  and  character,  to  offer  up  the 
suspicious  praises  which  an  Irish  attorney-general  is  supposed 
bound  to  tender  to  the  Lord  Lieutenant.  I am  too  sensible  of  the 
well-formed  taste  of  this  illustrious  person,  not  to  be  convinced 
that  he  would  reject  with  disdain  the  vulgar  incense  of  official 
adulation,  if  I could  stoop  to  offer  it.  No,  my  Lords,  it  would  be 
an  unsuited  return  for  the  kindness,  the  confidence,  I will  presume 
to  say  the  friendship  with  which  he  has  honored  me;  I know  too 
well  his  lofty  feelings  and  noble  nature,  cui  male  si palpere^  recal- 
citrat  undique  tutus;  but  I will  not  be  deterred  by  the  apprehension 
of  a suspicion  which  I disdain,  and  to  which  I trust  the  character 
of  my  life  renders  me  superior,  from  expressing  my  sentiments  of 
that  exalted  personage  when  he  has  become  the  object  of  vulgar 
scurrility,  and  when  an  open  and  desperate  attack  is  made  upon  his 


IX  REX  V.  FORBES  AND  OTHERS. 


629 


person  and  his  government.  I will  not  be  deterred  from  saying, 
that,  had  our  gracious  sovereign  surveyed  the  extent  of  his  domin- 
ions in  search  of  one  fitted  to  execute  the  magnificent  purposes  of 
benevolence  to  his  people  with  which  his  royal  breast  was  filled,  he 
could  not  have  found  a person  whom  the  gifts  of  nature,  improved 
by  every  noble  art,  and  mellowed  by  a long  and  arduous  experience 
in  the  most  difficult  exigencies  of  this  great  empire,  so  eminently 
qualified  for  the  task;  or  one  whose  heart  so  entirely  and  cordially 
vibrated  in  unison  with  the  gracious  and  paternal  interest  which 
was  felt  for  the  welfare  of  his  native  land.  That  noble  peer  en- 
tered on  the  government  of  this  country  under  this  royal  instruc- 
tion; he  had  to  explore  a very  difficult  and  dangerous  and  untried 
path,  but  he  had  the  parting  admonition  and  the  renew^ed  injunc- 
tions of  his  sovereign  for  his  pole  star.  He  entered  on  that  gov- 
ernment, carefully  distinguishing  his  opinions  and  duties  as  a poli- 
tician and  a legislator,  from  those  which  necessarily  involved  the 
system  of  government  of  the  country  committed  to  him.  Never 
abandoning,  but  carefully  distinguishing  his  individual  opinion 
from  his  official  duties,  he  applied  himself  strictly  and  exclusively 
to  effectuate  the  orders  of  the  king,  by  the  equal  administration  of 
the  existing  laws,  and  by  the  promotion  of  peace,  happiness  and 
concord  among  all  the  various  classes  of  his  subjects.  I defy  the 
malignity  of  criticism  to  point  out  a false  move  in  the  government 
of  that  noble  person;  one  instance  in  which  he  departed  from  the 
spirit  of  that  mission  of  conciliation  which  was  confided  to  him; 
an  act  or  an  expression  calculated  to  excite  offense  or  disapproba- 
tion in  the  mind  of  any  honest  man  or  lover  of  his  country,  be  his 
sect  or  his  party  what  it  may.  Pursuing  his  clear  and  undeviating 
course,  raised  above  all  party,  the  laws  for  his  guide,  and  the  public 
happiness  for  his  object,  his  fame  is  independent  of  the  praise  of 
his  friends  and  above  the  malice  of  his  enemies;  it  is  our  business, 
my  Lords,  to  guard  his  person  and  his  government  against  their 
secret  machinations  and  their  open  violence. 

The  discontinuance  of  the  public  insults  to  which  I have  al- 
ready alluded,  and  which  had  been  so  highly  disapproved  of  by  the 
king,  necessarily  had  a place  in  the  system  of  the  Lord  Lieutenant. 
The  offensive  toast  which  had  been  renewed  in  the  presence  of  the 
late  Lord  Lieutenant  was  withheld  in  the  presence  of  Lord  Welles- 
ley. I grieve  to  say  that  a spirit  of  mutiny  and  dissatisfaction  on 
this  subject  was  giddily  and  rashly  encouraged  by  many  who  knew 
and  ought  to  have  reverenced  the  king’s  commands.  The  Lord 


630 


SPEECH  OF  WILLIAM  CONYNGIIAM  PLUNKET 


Lieutenant,  however  highly  he  disapproved  the  giving  the  toast  on 
public  occasions,  did  not  think  it  became  him  to  take  any  further 
step,  having  taken  care  that  the  king’s  authority  should  not,  in  his 
presence,  be  insulted  by  it.  Another  subject,  or  rather  another 
part  of  the  same  subject,  called  his  attention. 

II.  The  object  of  Lord  Wellesley  in  preventing  the 

DECORATION  OF  KiNG  WiLLIAM’s  STATUE. 

The  statue  of  King  William,  you  all  know,  has  been,  for  some 
years  back,  bedaubed  with  ridiculous  painting  and  tawdry  orange 
colors — a ludicrous  specimen  of  bad  taste,  with  which,  however, 
his  excellency  did  not  feel  himself  called  on  to  intermeddle.  But, 
beyond  this,  a set  of  low  persons,  whose  names  were  not  avowed, 
had  been  for  some  years  back  in  the  habit  of  mounting  the  statue 
in  the  night  of  the  3d  of  November  and  of  the  nth  of  July,  and 
putting  on  it  a fantastic  drapery  of  orange  scarfs,  in  themselves 
ridiculous,  if  they  had  not  been  meant  as  a mark  of  triumph  over 
a certain  portion  of  their  fellow-subjects.  This  being  done  by  a 
party  of  sworn  Orangemen,  and  for  the  avowed  purpose  of  insult, 
had  been  resented  by  the  Roman  Catholics  whom  it  was  intended 
to  insult;  and  on  the  12th  of  July  last  a serious  riot  had  occurred, 
the  insulted  party  conceiving  that  they  had  as  good  a right  to  un- 
dress, as  the  other  had  to  dress,  the  statue  of  King  William.  In 
the  course  of  this  affray  lives  had  been  endangered,  the  peaceable 
inhabitants  of  College  Green  seriously  alarmed,  the  tranquillity  of 
the  metropolis  disturbed,  and  evil  passions  of  the  most  furious  kind 
engendered  in  the  minds  of  the  parties.  It  is  obvious  that  one  of 
these  three  courses  was  to  be  pursued.  Either  the  dressers  of  the 
statue  were  to  be  protected  by  public  force  and  the  constituted  au- 
thorities; or  they  were  to  be  forbidden  and  prevented;  or  the  par- 
ties were  to  be  left  to  fight  it  out,  till  outrage,  riot  and  bloodshed 
arrived  at  such  a height  that  the  civil  power  must  act  against  both. 
I have  never  heard  it  distinctly  stated,  or  that  it  was  distinctly 
stated  by  any  person,  that  either  the  first  or  the  last  of  these 
courses  ought  to  have  been  proved;  either  that  the  public  authori- 
ties should  have  been  called  to  assist  the  nightly  party  in  making 
the  toilet  of  King  William,  and  to  apprehend  any  person  who  should 
presume  to  interrupt  them;  or  that  the  streets  of  the  capital  should 
be  disgraced  by  the  continuance  of  these  senseless  brawls.  The 
first  question  on  which  his  Excellency  had  to  satisfy  his  mind  was, 


IN  REX  V.  FORBES  AND  OTHERS. 


631 


whether  the  continuance  of  the  practice  of  dressing  the  statue  might, 
under  such  circumstances,  be  legally  prevented. 

He  was  advised  that  it  clearly  might;  that  these  mummers  had 
no  right  to  lay  their  hands  on  this  public  ornament,  whether  for 
the  purpose  of  decoration  or  dedecoration.  Gentlemen,  I remem- 
ber that,  on  one  occasion,  a set  of  ruffians  mounted  this  statue 
and  daubed  it  over  with  lampblack.  Neither  they  nor  any  other 
persons  had  a right  to  meddle  with  the  public  ornaments,  either  to 
adorn  or  to  disgrace  them.  But,  independently  of  this,  his  Excel- 
lency was  advised  that  this  being  proposed  to  be  done,  not  in  dis- 
charge of  any  acknowledged  duty,  or  in  the  prosecution  of  any 
known  business,  or  in  the  exercise  of  any  right  of  property  or  fran- 
chise, either  by  grant  or  usage,  and  being*  found  by  experience  to 
have  a tendency  to  produce,  and  to  have  actually  produced,  a 
breach  of  the  peace,  and  it  being  proved  on  oath  that  it  had  done 
so,  and  that  its  continuance  excited  well-grounded  apprehensions 
for  the  safety  of  their  persons  in  the  minds  of  the  king’s  subjects 
residing  in  the  neighborhood,  several  of  whom,  persons  of  knov/n 
respectability,  and  Protestants  too,  had  made  affidavit  to  that  effect, 
his  Excellency  was  advised  that  he  would  be  well  warranted  in 
using  the  civil  force  to  prevent  the  dressing  of  the  statue, 

I am  ashamed  to  think  that  it  should  be  necessary  to  say,  in  a 
court  of  justice,  that  they  were  Protestants,  I say  this,  because 
there  are  persons  weak  enough  to  imagine  that  the  oath  of  a 
Catholic  is  not  to  be  attended  to  on  this  subject,  and  because  it  has 
been  untruly  stated  that  these  were  affidavits  of  Catholics  of  the 
lower  order,  I owe  an  apology  to  the  good  sense  and  feeling  of  the 
court  and  the  jury,  for  stating  what  their  religion  was;  it  is  a dis- 
grace to  our  country  that  such  topics  should  be  adverted  to.  Gen- 
tlemen, I have  been  public  prosecutor  in  this  country,  at  a period 
when  the  passions  of  men  were  most  alive;  and  nevei  in  the  course 
of  my  official  experience  have  I given  any  other  advice  to  the 
solicitor  for  the  crown,  than  to  select  honest  and  fair  men,  without 
reference  to  their  religious  opinions,  and  I have  never  felt  myself 
disappointed  in  the  result;  and  therefore  you  will  not  suppose  that 
the  circumstance  of  these  persons  being  Protestants  was  necessary 
to  prop  their  credit  in  my  estimation, 

I am  glad  to  have  this  opportunity  of  stating,  that  being  called 
on  in  the  discharge  of  my  sworn  duty  for  my  opinion,  I gave  it  as 
I have  stated,  and  I challenge  any  man  who  respects  his  character 
as  a constitutional  lawyer  to  correct  its  soundness.  It  is  no  light 


G32 


SPEECH  OF  WILLIAM  CONYXGHAM  PLUNKET 


matter  to  charge  the  executive  government  with  acting  contrary  to 
law  against  any  portion  of  the  people;  it  begets  in  their  minds  the 
notion  that,  in  resisting  the  civil  authorities,  they  are  resisting  not 
law  but  power.  Such  a course  is  calculated  to  bring  the  govern- 
ment of  the  country  into  contempt;  and  when  the  acts  so  spoken 
of  have  been  done  in  pursuance  of  the  king’s  instructions,  it  is  a 
violation  of  the  personal  respect  which  is  due  to  him,  independently 
of  its  tendency,  to  weaken  the  authority  of  his  government  in  this 
country. 

His  Excellency  was,  independently  of  any  respect  which  his 
kindness  might  dispose  him  to  attach  to  the  opinion  of  his  law  ad- 
viser, perfectly  satished  of  the  illegality  of  the  practice  in  quesdon; 
and  I am  authorized  to  take  this  public  opportunity  of  stating,  that 
having  communicated  on  the  subject  with  the  king’s  government  in 
England,  he  was  sanctioned  by  their  unanimous  opinion  in  using 
the  civil  power  for  the  prevention  of  these  illegal  practices.  I am 
further  authorized  to  state,  that  since  his  Excellency  adopted  the 
measures  which  are  so  publicly  known  for  the  carrying  that  opin- 
ion into  effect,  his  conduct  has  received  the  unanimous  approbation 
of  the  entire  British  cabinet,  and  has,  above  all,  been  crowned  by 
the  highest  reward  which  a subject  can  receive  for  the  faithful  dis- 
charge of  his  duty,  the  personal  approbation  of  his  sovereign,  whose 
commands  he  executed  and  whose  government  he  sustained. 

12.  Legal  methods  resorted  to  as  the  only  means  of 

PREVENTING  IT. 

Before  his  Excellency  resorted  to  any  public  means  for  the  sup- 
pression of  this  practice,  he  tried  every  expedient,  by  persuasion 
and  remonstrance,  to  obviate  the  necessity  of  public  interference. 
It  is  but  justice  to  say,  that  many,  very  many  of  the  principal  per- 
sons who  were  supposed  to  have  an  influence  over  the  Orange  asso- 
ciations did  exert  their  authority  for  the  purpose;  but  whatever 
were  their  exertions,  they  were  unavailing;  they  found  they  could 
not  govern  the  party  with  whom  they  had  associated  themselves. 
So  must  it  ever  be  when  rank  and  station  and  education  con- 
descend to  combine  in  a secret  bond  with  the  vulgar  and  the  igno- 
rant. They  must  not  expect  to  govern  them;  so  long  as  they  run 
in  the  same  course  of  party  and  opinion,  they  may  be  suffered  to 
lead;  but  in  vain  will  they  endeavor  to  alter  the  direction  or  mod- 
erate the  violence.  When  the  evil  spirit  is  unchained  and  let  loose, 
the  spell  that  raised  it  will  be  unavailing  to  allay  it — for  the  pur- 


IN  REX  V.  FORBES  AND  OTHERS. 


633 


poses  of  a greater  excitement  they  may  be  powerful  and  danger- 
ous; for  those  of  repression  and  restraint  altogether  impotent.  The 
lower  classes  of  these  persons  declared  they  would  disobey  the 
Lord  Mayor’s  proclamation,  and  resist  the  magistrates.  Furious 
and  absurd  speeches  were  made  at  public  meetings,  filled  with 
vulgar  invectives  against  the  constituted  authorities;  and  prepara- 
tions were  made  for  resistance  to  the  law.  The  dressing  of  the 
statue  on  the  night  of  the  third  and  day  of  the  fourth  of  Novem- 
ber was  prevented;  but  on  subsequent  nights,  particularly  on  the 
night  of  the  sixth  of  November,  several  of  the  party  assembled  for 
the  purpose,  and  were  not  dispersed  without  considerable  disturbance 
and  difficulty.  On  this  occasion  the  traverser  Henry  Handwich 
was  particularly  active;  he  headed  a party  who  arrayed  themselves 
against  the  magistracy  for  the  purpose  of  dressing  the  statue.  He 
was,  it  seems,  the  regular  manteau-maker  to  King  William.  He  col- 
lected subscriptions  on  the  night  between  the  fifth  and  sixth  of 
November;  he  mounted  on  the  statue,  and  nailed  upon  it  the 
tawdry  ornaments  with  which  he  was  furnished.  With  some  diffi- 
culty he  and  his  party  were  suppressed;  they  were  dispersed  before 
morning.  Two  or  three  similar  attempts  were  afterwards  made, 
but  the  firmness  of  the  magistrates  was  sufficient  to  put  them  down. 

In  this  situation  of  affairs,  the  Lord  Lieutenant  availed  himself 
of  the  first  opportunity  which  the  various  claims  of  public  care  al- 
lowed him,  to  announce  his  intention  of  honoring  the  Theater 
Royal  with  his  presence.  A play  was  accordingly  announced,  and 
notice  given. 

13.  Narration  of  the  facts  constituting  the  charges 

AGAINST  THE  DEFENDANTS. 

I shall  now  state  the  facts  of  this  case,  which  will  be  so  clearly 
proved,  and  placed  so  far  beyond  all  doubt,  that  no  gentleman 
whom  I have  the  honor  of  seeing  in  that  jury  box,  can  leave  it 
with  a doubt  upon  his  mind  as  to  the  real  nature  of  the  transaction. 
Certain  persons  met  together,  and  conceived  that  this  would  be  a 
good  opportunity  of  marking  their  public  indignation  against  the 
Marquis  Wellesley,  for  presuming  to  enforce  the  king’s  command  in 
forbidding  the  dressing  of  the  statue.  One  of  those  persons,  gen- 
tlemen (melancholy,  if  this  be  so,  is  the  situation  of  the  Lord 
Lieutenant),  holds  high  situations  under  the  king’s  government,  a 
place  in  the  post  office,  and  another  in  the  customs,  producing 
nearly  ^800  a year.  I allude  to  a man  named  William  Heron. 


634 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


This  person,  and  another  of  the  name  of  M’Culloch,  who  holds  a 
situation  in  the  Meath  hospital;  a man  named  Atkinson,  holding  a 
situation  in  the  Custom  House,  and  others,  on  the  night  of  Wednes- 
day or  the  morning  of  the  Thursday  before  the  play,  consulted  as 
to  the  best  means  of  dealing  with  the  subject.  The  result  they 
came  to  was,  that  this  would  be  a proper  opportunity  for  acting  in 
the  theater  in  such  a manner  as  to  evince  the  unpopularity  of  the 
Lord  Lieutenant  and  his  government,  and  make  it  necessary  f«r 
him  to  leave  the  house,  and  eventually  to  leave  the  country.  It 
was  determined  that  a subscription  should  be  raised  to  purchase 
tickets.  Well  knowing  that  the  true  expression  of  the  public  senti- 
ment would  be  strong  in  favor  of  his  Excellency,  they  resolved,  in 
order  to  thwart  it,  to  collect  a party  and  pack  the  theater.  They 
thought  the  persons  who  were  associated  would  of  themselves  be 
sufficient  for  the  pit  and  the  middle  gallery;  but  that,  for  the  in- 
ferior orders,  seats  must  be  purchased.  Accordingly  a subscription 
of  ;£‘2  was  collected  by  Heron  and  sent  by  him  to  Atkinson.  This 
was  to  be  communicated  to  an  Orange  lodge,  assembled  at  the 
house  of  one  Daly,  in  Werburgh  street,  in  what  is  called  the  Purple 
Order  of  the  lodge.  That,  gentlemen,  is  not  conferred  upon  any 
person  until  he  has  been  for  a certain  time  a member  of  the  general 
institution.  This  subscription  was  given  to  the  parties  present  at 
the  lodge,  and  an  additional  subscription  was  raised  by  them.  Two 
of  those  lodges  were  concerned.  The  traverser,  James  Forbes,  is 
a member  of  the  lodge  1660.  He  is  deputy  master  of  that  lodge. 
William  Graham  is  secretary  of  the  same.  Henry  Handwich  and 
Matthew  Handwich  are  members  of  the  lodge  780,  of  which  Henry 
is  deputy  m.aster;  and  William  Brownlow  is  a member  of  1612. 
Although  it  is  necessarily  my  duty  to  show  who  and  what  these  per- 
sons are,  I do  not  meddle  with  the  general  character  of  Orange 
lodges  in  Ireland,  the  merits  of  which  are  for  another  place.  I am 
well  satisfied  that  the  great  body  of  Orangemen  feel  as  much  ab- 
horrence at  this  crime  as  any  individual  can  do.  With  this  sub- 
scription a number  of  pit  tickets  were  purchased  on  Saturday  morn- 
ing from  the  book-keeper  at  the  play  house.  This  was  for  the  pur- 
pose of  filling  the  upper  gallery.  It  was  thought  that  the  members 
who  w^ere  able  to  purchase  tickets  for  themselves  would  be  sufficient 
for  the  i;it  and  middle  gallery.  One  pit  ticket  was  to  be  given  to 
every  three.  Forbes  was  present  when  this  subscription  was  raised. 
On  the  Saturday  morning,  Forbes,  M’Culloch  and  Atkinson  went 
together  to  the  theater  and  purchased  the  tickets.  They  regularly 


IN  REX  V.  FORBES  AND  OTHERS. 


G35 


proceeded  to  fashion  the  conspiracy  in  all  its  parts.  It  was  deter- 
mined that  an  inferior  Orange  lodge,  to  which  Handwich  belonged, 
and  which  met  at  Mrs.  Daly’s,  in  Ship  street,  should  be  ready  to  go 
to  the  theater  to  execute  the  plan.  Application  was  made  in  the 
morning  to  Matthew  Handwich  at  his  work,  and  he  was  desired  to 
communicate  with  his  brother  Henry.  Accordingly,  about  four 
o’clock  in  the  evening  of  Saturday,  the  parties  met — Forbes,  Atkin- 
son, the  Handwiches,  and  others.  They  were  first  supplied  with 
drink.  They  came  armed  with  sticks.  Handwich  had  been  asked 
if  he  could  furnish  sixty  men.  He  said  he  could.  He  had  not 
quite  so  many  at  first,  but  the  number  was  completed  in  the  passage 
to  the  theater.  They  were  dispatched  from  the  place  of  meeting 
in  parties  of  three,  each  with  a pit  ticket.  The  number  was  at 
first  sixty,  but  afterwards  increased  to  near  an  hundred.  They 
were  armed  with  bludgeons.  The  residue  of  the  whisky  they  had 
been  drinking  they  put  into  a bottle  and  carried  to  the  theater. 
The  last  words  of  Handwich,  on  leaving  the  place  of  meeting, 
were,  “ Boys,  be  wicked.”  It  was  settled  that  the  duty  of  lodge 
1612  should  be  to  go  to  the  pit  door  and  beset  it  before  it  was 
open,  and  to  rush  in  in  a body  and  occupy  that  part  of  the  pit  next 
to  his  Excellency’s  box.  Their  directions  were,  that  as  soon  as 
“ God  save  the  King  ” was  played,  the  “ Boyne  Water  ” should  be 
called  for,  and  if  it  were  refused,  that  the  play  should  be  stopped, 
and  that  a system  of  hissing,  groaning  and  violence  should  com- 
mence. One  of  the  party  had  a large  rattle  in  his  hand,  for  the 
purpose  of  riot. 

I should  tell  you,  that  at  the  meeting  held  of  the  Purple  Order, 
on  Friday  evening,  and  at  which  Forbes  was  present,  the  plan  was 
fully  announced  of  compelling  the  Lord  Lieutenant  to  leave  the 
theater,  and,  if  possible,  the  country.  One  of  the  party  even 
offered  to  lay  a wager,  that  before  March  he  would  be  out  of  the 
country.  Finding  that  these  conspirators  entertained  such  serious 
views;  that  their  object  was  to  make  such  a demonstration  of  hostil- 
ity as  to  compel  his  Excellency  to  quit  the  country,  and  that  this 
was  to  be  effected  by  resistance,  by  riot,  and  even  by  personal 
violence,  one  of  the  parties  engaged  took  the  alarm.  He  was 
shocked  at  the  extent  to  which  their  fury  might  go.  At  one  time 
he  had  formed  the  resolution  of  going  to  the  Lord  Lieutenant  and 
apprising  him  of  the  truth  and  the  danger  to  which  he  was  exposed. 
He  went  to  the  park;  a sentinel  at  the  gate  of  the  Viceregal  lodge 
asked  him  his  business;  his  mind  was  in  that  situation  in  which  a 


636 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


trivial  circumstance  makes  an  alteration — he  hesitated  and  re- 
turned, and  the  disclosure  was  not  made. 

Gentlemen,  the  party  (1612),  which  had  been  arranged  for  the 
purpose,  rushed  into  the  pit  and  occupied  that  part  of  it  which  was 
nearest  the  viceregal  box.  The  upper  gallery  party,  to  the  number 
of  sixty,  went  there  with  the  pit  tickets.  They  had  fixed  upon  a 
watch-word:  “Look  Out.”  They  seated  themselves  on  the  left- 
hand  side  of  the  gallery,  where  the  violence  was  carried  on  during 
the  night.  Forbes  placed  them  at  their  posts  in  the  upper  gallery, 
armed  with  bludgeons.  The  police  occupied  the  opposite  side  of 
the  house,  and,  like  faithful  watchmen,  fell  asleep  on  their  posts. 
No  interruption  was  given  to  the  merriment  or  to  the  mischief  of 
the  party.  To  show  the  deliberation  of  their  plans,  I should  men- 
tion that,  previously  to  the  play,  handbills  were  struck  off,  contain- 
ing expressions  insulting  to  the  Lord  Lieutenant,  such  as,  “ Down 
with  the  Popish  government,”  &c.,  and  other  expressions  insignifi- 
cant and  contemptible,  except  as  evincing  deliberation  and  con- 
cert. These  handbills  were  brought  to  the  theater,  and  disposed 
of  by  the  members  of  the  conspiracy.  Several  were  thrown  by 
M’Culloch,  from  the  lattices  over  the  Lord  Lieutenant’s  box,  and 
others  from  various  parts  of  the  house.  It  will  be  proved  that, 
from  the  opening  of  the  theater,  the  grossest  system  of  insulting 
and  offensive  expressions  was  commenced;  groans  were  raised  for 
“The  Popish  Lord  Lieutenant,”  and  cries  of  “No  Popish  govern- 
ment.” There  were  also  groans  for  the  house  of  Wellesley.  They 
did  not  confine  themselves  to  the  noble  lord  at  the  head  of  the  gov- 
ernment; they  extended  to  the  duke  of  Wellington,  and  the  other 
branches  of  his  illustrious  family.  Not  satisfied  with  that,  these 
advocates  of  religion  gave  “ a clap  for  the  calf’s  head,”  an  allusion 
to  a monstrous  outrage  committed,  in  or  near  Ardee,  by  some 
ruffians  who  profaned  a Roman  Catholic  place  of  worship  by  placing 
such  a thing  upon  the  altar.  They  applauded  also  Sheriff  Thorpe, 
with  the  calf’s  head.  There  was  “ a groan  for  the  bloody  Popish 
Lord  Lieutenant.”  I cannot  remember  all  the  terms  of  outrage 
which  were  used.  Some  persons,  not  connected  with  the  gang, 
cried  out:  “Shame,  shame.”  Of  these  some  were  severely  beaten, 
and  one  man  had  a narrow  escape  by  getting  down  from  the  upper 
into  the  middle  gallery;  several  were  alarmed  and  left  the  house. 
When  the  Lord  Lieutenant  came  in,  there  was  a general  expression 
of  approbation  from  the  audience,  which,  for  some  time,  bore 
down  the  hisses  of  the  corspirators.  But  when  an  opportunity 


IN  REX  V.  FORBES  AND  OTHERS. 


637 


arose,  a violent  hissing  and  groaning  were  set  up.  These  things 
went  on  till  “God  save  the  King”  was  played;  at  that  period  a 
bottle  was  thrown  from  the  upper  gallery,  which  hit  the  stage  cur- 
tain. The  fact  will  be  proved  by  a variety  of  witnesses,  who  will 
leave  no  doubt  upon  it  in  your  minds.  It  was  flung  from  the  gal- 
lery by  Henry  Handwich.  He  will  appear  to  have  been  a leader 
of  the  party.  You  will  have  the  testimony  of  several  distinct  and 
independent  witnesses,  who  can  have  no  other  object  than  to  tell 
the  truth.  Several  persons  saw  the  bottle  in  its  progress.  Amongst 
the  idle  reports  which  have  been  circulated  as  to  this  transaction,  it 
has  been  said,  that  this  came  from  the  carpenters’  gallery,  and  from 
the  pit;  but,  gentlemen,  we  shall  put  the  fact  beyond  all  contro- 
versy. As  to  the  precise  point  where  it  hit  the  curtain,  there  is  a 
diversity  of  opinion;  but  that  it  hit  somewhere  nearer  to  the  Lord 
Lieutenant  than  to  the  center,  all  the  accounts  concur.  Some  of 
the  witnesses  say,  it  struck  within  four  feet  of  the  side  next  the 
Lord  Lieutenant,  and  within  four  feet  of  the  stage.  Another  says, 
that  it  was  the  breadth  of  the  festoon.  But  all  concur  in  this,  that 
it  was  thrown,  and  that  their  impression  was  that  it  was  directed 
against  the  Lord  Lieutenant.  It  was  thrown  from  the  same  side  on 
which  his  Excellency  sat.  You  will  ask  v/hy  did  they  get  to  that 
side.  The  right-hand  side  had  been  early  occupied  by  other  per- 
sons; and  the  conspirators,  feeling  it  necessary  to  be  in  a body, 
were  obliged  to  go  to  the  left.  The  precise  situation  in  which 
Handwich  was  placed  when  he  threw  the  bottle,  will  be  proved  to 
you.  He  threw  it  under  him,  or  by  a side  motion,  and  not  over 
him.  Any  person  who  will  attend  to  the  position  in  which  he  was, 
as  well  as  to  that  of  the  Lord  Lieutenant,  will  easily  account  for 
the  aberration  of  the  instrument.  All  the  witnesses  agree  in  stating 
it  to  be  their  impression  that  the  bottle  was  directed  against  his 
Excellency.  Besides  the  general  proof  to  show  that  the  bottle 
came  from  the  upper  gallery,  there  are  three  witnesses  who  dis- 
tinctly saw  Henry  Handwich  throw  it.  One,  whose  arrival  we 
hourly  expect,  had  his  attention  excited  by  some  expression  of 
Handwich,  and  immediately  marked  him.  He  swears  positively  to 
his  having  thrown  the  bottle. 

George  Graham  was  one  of  the  principal  rioters.  He  had  a 
large  rattle  which  he  used  at  first  for  the  purpose  of  making  a 
noise;  and  when  it  had  performed  its  services  in  that  department, 
he  converted  it  into  an  instrument  of  personal  attack.  He  broke 
it  into  two  pieces,  and  it  will  be  distinctly  proved  that  he  came  for- 


638 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET 


ward  and  took  deliberate  aim  at  the  Lord  Lieutenant’s  head;  so 
good  an  aim  that  it  struck  the  cushion  of  the  next  box,  and  with 
such  force  that  it  cut  the  cushion  and  rebounded  on  the  stage.  If 
it  had  taken  effect,  in  all  probability  it  would  have  put  an  end  to 
his  life. 

When  I state  that  a bottle  was  thrown  at  the  king’s  representa- 
tive, and  that  implements  of  violence  were  flung  at  his  person,  such 
is  the  state  of  the  public  mind,  that  it  is  listened  to  as  if  it  were  a 
mere  bagatelle,  a jeii  d'‘ esprit^  a trifle  of  which  the  Lord  Lieutenant 
need  not  take  any  notice,  and  which  is  below  the  attention  of  the 
government  and  the  law  officers.  Why,  gentlemen  of  the  jury,  are 
we  awake  ? Can  we  be  insensible  to  the  effect  of  such  occurrences 
upon  the  honor  and  safety  of  the  country  ? Can  we  reflect,  with- 
out indignation,  that  such  an  outrage  should  be  committed  in  a 
civilized  country  against  the  person  of  his  majesty’s  representative, 
because  he  had  the  presumption,  in  opposition  to  a desperate  gang, 
to  execute  the  parting  injunctions  of  the  king  in  a manner  not  cal- 
culated to  give  offense  or  excite  animosity  ? The  sentiments  of  the 
audience  were  roused;  some  rushed  up  to  the  gallery.  Graham 
first  flung  the  heavy  part  of  the  rattle,  and  then  the  light.  It  will 
be  produced  to  you.  Forbes,  as  I have  already  stated,  was  a party 
to  the  entire  system  of  the  party,  and  was  present  at  the  sending 
the  men  from  Daly’s  to  the  gallery  with  bludgeons.  He  stationed 
them  in  the  upper  gallery  at  their  post.  After  the  bottle  and  rattle 
had  been  thrown,  he  was  observed  in  the  lattices  or  pigeon  holes, 
immediately  adjoining  the  left  side  of  the  upper  gallery,  in  which 
he  had  previously  stationed  the  party;  he  was  separated  from  them 
only  by  the  spikes  dividing  those  two  parts  of  the  house.  He  was 
seen  actively  encouraging  the  rioters;  he  held  in  his  hand  a whistle 
with  which  he  sounded  the  alarm,  and  gave  a signal  which  was  an- 
swered through  the  whole  house.  He  was  asked  by  a magistrate 
why  he  used  the  whistle,  to  which  he  replied,  “for  fun.”  He  was 
then  arrested,  but  liberated  on  promise  to  give  bail. 

Here  Mr.  Plunkett  briefly  referred  to  conversations  of  some  of  the  traversers, 
after  the  affair  at  the  theatre,  to  show  that  they  boasted  of  what  they  had  done. 
He  then  continued; 

14.  The  action  of  the  attorney-general  an  exercise  of 

WISE  DISCRETION. 

Am  I now  to  justify  myself  in  your  opinion,  and  in  that  of  the 
public,  for  the  exercise  of  my  discretion  in  this  officio  informa- 


IN  REX  V.  FORBES  AND  OTHERS. 


639 


tion,  by  which  I have  been  enabled  for  the  first  time  to  bring  these 
facts  before  the  public  ? I ask  any  man  who  has  a principle  of 
candor  or  honesty  in  his  composition,  whether  he  is  not  bound  to 
acquit  me,  and  whether  I should  not  have  basely  betrayed  the  king 
whom  I serve,  and  the  office  with  which  he  has  honored  me,  if  I 
suffered  public  justice  to  be  stifled  and  obstructed  ? When  these 
transactions  were  brought  under  the  consideration  of  the  govern- 
ment, the  law  officers  were  consulted  by  the  magistrates.  We  be- 
stowed the  most  patient  attention  and  laborious  investigation  on 
the  case;  for  five  or  six  days  we  were  occupied  at  this  business. 
Every  day  some  new  light  was  thrown  upon  it,  until  it  at  length 
assumed  an  aspect  so  formidable  as  to  lead  us  to  the  apprehension 
that  his  Excellency’s  life  had  been  directly  aimed  at.  When  we 
learned  that  Forbes  had  avowed  his  approbation  of  the  act;  when, 
after  the  conspiracy  had  shown  itself  in  its  most  desperate  effects, 
he  expressed  his  regret  at  its  failure,  and  his  determination  to  make 
another  attempt  more  effectual;  we  felt,  when  called  upon  for  our 
advice  upon  his  application  to  be  discharged,  that  we  could  not 
justify  it  to  our  conscience  and  our  sworn  duty,  or  to  the  respect 
due  to  the  high  personage  and  illustrious  character  who  had  been 
offered  at,  if  we  had  suffered  him  to  go  at  large  till  we  knew  the 
whole  of  the  transaction.  There  was  at  that  time  evidence,  not 
only  sufficient  to  warrant  a grand  jury  for  finding  a bill  for  con- 
spiracy to  murder,  but  even  for  a petty  jury  to  found  a verdict  for 
conviction.  It  was  one  thing  to  consider  the  proper  species  of 
committal,  and  another  in  what  way  we  should  ultimately  proceed. 
When  that  point  came  to  be  finally  decided  on,  and  we  had  reason 
to  believe  that  the  whole  of  the  evidence' was  before  us,  our  deter- 
mination was  not  to  proceed  on  the  capital  charge.  It  was  in- 
finitely better  we  should  be  censured  for  the  tameness  of  our  pro- 
ceeding, than  that  we  should  be  arraigned  for  its  rigor.  We  felt 
that  before  we  sent  up  an  indictment  containing  a capital  charge,  we 
should  be  clearly  satisfied  that  the  primary  object  of  the  conspiracy 
was  to  take  away  the  life  of  the  Lord  Lieutenant,  and  that,  if  any 
doubt  rested  on  the  case,  it  would  be  better  to  be  blamed  for  the 
timidity  and  forbearance  of  the  prosecution  than  exposed  to  the 
heavy  charge  of  exerting  a rigor  beyond  the  law.  We  were  glad  to 
show  in  the  instance  of  the  most  illustrious  personage  of  the  realm 
a strict  observance  of  the  law.  What  satisfied  my  mind  against 
sending  up  a bill  of  indictment  on  a capital  charge  was  this,  that 
the  object  of  driving  the  Lord  Lieutenant  by  violence  from  the 


640 


SPEECH  OF  WILLIAM  CONYNGHAM  PLUNKET. 


theater,  and  from  the  country,  though  it  involved  the  imminent 
hazard  of  the  life  of  the  Lord  Lieutenant,  was  distinct  from  the 
notion  of  a conspiracy  to  murder  him.  When  it  clearly  appeared 
that  the  object  was  to  put  down  the  Lord  Lieutenant’s  government 
and  force  him  from  the  country,  although  this  plot  involved  in  it 
an  outrage  on  his  person,  I did  not  think  that  in  a capital  case  a 
jury  could  be  called  upon  to  say  that  murder  was  the  aim  of  the 
conspiracy.  Under  these  circumstances,  therefore,  we  thought  it 
right  to  send  up  the  indictments  for  the  misdemeanors  which  the 
grand  jury  have  thrown  out. 

The  nature  of  these  informations  has  already  been  laid  before 
you.  There  are  two  distinct  informations;  one  is  for  a riot  and  the 
other  for  a conspiracy  to  riot.  The  counts  vary;  but  in  each  there 
is  alleged,  first,  a conspiracy  to  riot,  and  then  a conspiracy  to  hoot, 
groan,  hiss  and  assault  the  Lord  Lieutenant.  In  point  of  law, 
either  or  any  part  of  these  charges,  if  proved,  will  justify  a verdict. 
I have  no  doubt  of  being  able  to  prove  the  whole.  I have  stated 
this  case  without  exaggeration  against  the  traversers  at  the  bar.  I 
have  no  feelings  in  the  discharge  of  my  duty,  except  the  desire 
faithfully  to  acquit  myself  of  what  I owe  to  my  country  and  to  my 
sovereign.  I may  have  expressed  myself  with  warmth,  I hope  not 
with  intemperance.  But  after  I have  disabused  your  minds  of  the 
ten  thousand  falsehoods  which  have  been  circulated  on  this  sub- 
ject, I feel  it  would  be  trifling  with  public  justice  to  say,  that  this 
was  the  act  of  a few  misguided  ruffians,  growing  out  of  any  sudden 
impulse.  It  is  a proceeding  originating  with  a gang  within  the 
limits  of  this  city,  associated  for  the  purpose  of  putting  down  the 
king’s  government,  of  driving  the  Lord  Lieutenant  from  this  coun- 
try, and  of  showing  that  he  has  not  the  power,  against  their  wishes 
and  their  authority,  to  discharge  the  duties  belonging  to  his  ex- 
alted station. 


SPEECH  OF  JOHN  HENRY  NORTH 


Opening  for  the  Defense  in  Rex  v.  Forbes  and  Others.— 
Conspiracy  and  Riot. 

IN  THE  COURT  OF  KING’S  BENCH,  DUBLIN,  HILARY  TERM, 
3D  GEORGE  IV,  FEBRUARY  5th,  1823. 


Analysis  of  Me.  North’s  Speech. 


1.  A proceeding  based  upon  an  ex  officio  in- 

formation, illegal  and  without  prece- 
dent 

2.  The  charges  and  the  evidence. 

3.  Loyalty  the  chief  characteristic  of  Orange- 

men. 

4.  Propriety  of  decorating  King  William’s 

statue  discussed,  — Scene  when  the 
ceremony  was  forbidden. 

5.  The  attorney-general’s  tribute  to  the 

memory  of  King  William. — Right  of 
defendants  to  respect  his  memory. 

6.  The  real  object  of  the  Lord  Lieutenant’s 

visit  to  the  theater. 

7.  A protest  against  unmerited  applause  no 

crime. 


8.  The  defendants  never  contemplated  per- 

sonal  violence. 

9,  The  testimony  of  the  Atkinson  brothers 

discredited. 

10.  Sketch  of  Michael  Farrell,  and  review  of 

his  testimony. 

11.  Arraignment  of  Proctor  M’Namara,  who 

saw  the  bottle  “ in  transit.” 

12.  The  conduct  of  defendants  not  criminal. — 

Supposed  dialogue  between  Addison 
and  Lord  Somers. 

13.  References  to  Bolingbroke,  the  Duke  of 

Rutland,  and  Queen  Elizabeth. 

14.  Political  aspect  of  a verdict  consid- 

ered. 


The  defendants  embraced  in  the  information  in  this  remarkable  trial  were 
James  Forbes,  George  Graham,  William  Graham,  Henry  Handwich,  otherwise 
called  Henry  Handbridge,  Matthew  Handwich,  otherwise  called  Matthevy  Hand- 
bridge,  Robert  Fletcher  the  younger,  Thomas  Kelly,  William  Brownlow,  Rich- 
ard McIntosh,  William  McCullogh,  and  William  Heron,  and  divers  other  per- 
sons to  the  attorney-general  unknown.  There  were  two  informations.  The 
first  charged  a conspiracy,  confederation  and  agreement  to  hiss,  groan,  insult  and 
assault  the  Lord  Lieutenant  while  he  should  be  present  in  the  theater,  and  to 
procure  the  same  to  be  done.  The  second  charged  that  the  defendants  did,  with 
force  and  arms,  unlawfully  make  a great  noise,  riot  and  disturbance  in  the  thea- 
ter, the  Lord  Lieutenant  then  and  there  being  present,  and  did  then  and  there, 
with  force  and  arms,  publicly  and  openly  hiss,  hoot,  groan,  insult  and  assault 
the  Lord  Lieutenant,  and  with  force  and  arms  throw,  fling  and  cast  at  the  Lord 
Lieutenant,  with  intent  to  strike  and  hit  the  Lord  Lieutenant,  “ divers  pieces  of 
wood  and  copper,  and  divers  glass  bottles,  in  contempt  of  our  lord  the  king  and 
his  laws,  to  the  evil  example  of  all  others  in  like  cases  offending,  and  against 
the  peace  of  our  said  loid  the  king,  his  crown  and  dignity.”  The  counsel  en- 
gaged in  the  cause  were  numerous.  For  the  crown  appeared  the  Attorney-Gen- 
41  [6411 


642 


SPEECH  OF  JOHT^-  HENRY  NORTH 


eral  (Mr.  Plunket),  the  Solicitor-General  (Mr.  Joy),  Sergeant  Lefroy,  Sergeant 
Torrens,  Mr.  Townsend,  and  Mr.  Greene;  Agent,  Mr.  Kemmis.  For  the  pris- 
oner James  Forbes  appeared  Mr.  Johnstone,  Mr.  Blackburne,  Mr.  Speer,  Mr. 
Rolleston,  Mr.  Hamilton,  Mr.  Perrin,  and  Mr.  Law;  Agent,  Mr.  Chambers. 
For  Matthew  Handwich  and  George  Graham  appeared  Mr.  Driscoll,  Mr.  Scriven, 
Mr.  Speer  and  Mr.  Hamilton.  Mr.  North  appeared  for  Henry  Handwich  and 
George  Graham.  For  William  Brownlow  Mr.  Scriven  appeared;  Agent,  Mr. 
Fearon.  Upon  the  bench  were  the  Lord  Chief  Justice  (Charles  Kendal  Bushe) 
and  Mr.  Justice  Jebb,  Mr.  Justice  Burton  and  Mr.  Justice  Vandeuleur,  associ- 
ates. 

When  the  crown  rested,  Mr.  Driscoll  opened  for  the  defense.  Mr.  North 
then  delivered  the  following  address,  after  which  Mr.  Johnstone  spoke  to  the 
jury.  The  case  was  summed  up  by  the  Solicitor-General  (Mr.  Joy).  The  Chief 
Justice  and  Mr.  Justice  Jebb  charged  the  jury.  The  trial  commenced  on  Mon- 
day morning,  February  3d,  and  was  closed  late  on  Friday  the  7th.  The  follow- 
ing day,  the  jury,  having  been  unable  to  agree  except  as  to  the  defendant  Brown- 
low  who  was  acquitted,  was  discharged. 

John  Henry  North  died  in  September,  1831,  at  the  early  age  of  forty-two, 
without  having  gained  the  distinctions  to  which  his  abilities  entitled  him.  He 
was  a man  of  first-rate  talents.  His  university  career  was  one  of  the  most  bril- 
liant ever  attained,  and  no  student  within  a century  was  graduated  from  Trinity 
College,  Dublin,  with  greater  honors.  He  had  conferred  upon  him  an  optime, 
a mark  of  distinction  seldom  obtained,  and  only  given  as  a recognition  of  the 
highest  merit  in  every  department  of  learning.  When  called  to  the  bar  it  was 
fondly  predicted  that  his  career  would  form  a new  and  splendid  era  in  the  annals 
of  Irish  oratory,  but  this  expectation,  for  some  reason,  was  not  fulfilled.  Speak- 
ing of  his  power  as  an  advocate,  Sheil  says  : “ One  qualification  of  a speaker  he 
possessed  in  an  extraordinary  degree.  For  extemporaneous  correctness  and 
copiousness  of  phrase,  I would  place  him  in  the  very  highest  rank.  All  that  he 
utters,  wherever  the  occasion  justifies  the  excitement  of  his  faculties,  might  be 
safely  printed  without  revision.  Period  after  period  rolls  on,  stately,  measured 
and  complete.  There  is  a paternal  solicitude — perhaps  a slight  tinge  of  aristo- 
cratic pride,  in  his  determination  that  the  children  of  his  fancy  should  appear 
abroad  in  no  vulgar  garb.  He  is  not  like  O’Connell,  who,  with  the  improvidence 
of  his  country,  has  no  compunction  in  flinging  a brood  of  robust  young  thoughts 
upon  the  world  without  a rag  to  cover  them.” 

His  speech  to  the  jury  in  the  present  case,  though  it  cannot  be  regarded  as 
a specimen  of  the  first  order  of  excellence,  is  an  able  address.  His  plea  was 
rather  ingenious.  He  advanced  the  theory  that  the  real  object  of  the  Lord  Lieu- 
tenant’s presence  at  the  theater  was  to  test  the  popularity  of  his  administration, 
and  therefore  the  marks  of  approval  or  disapproval  were  not  only  justified,  but 
were  called  forth  by  Lord  Wellesley  himself,  and  were  the  legitimate  result  of 
his  visit.  His  tribute  to  the  accomplishments  of  Lord  Plunket  as  an  orator,  in 
connection  with  the  latter’s  panegyric  on  King  William,  is  one  of  the  most  fin- 
ished passages  in  the  speech.  Mr.  North  spoke  as  follows: 


Gentlemen  of  the  Jury: — I rise  to  address  you  on  behalf 
of  Henry  Handwich  and  William  Graham.  When  these  men  ap- 


IN  REX  V.  FORBES  AND  OTHERS. 


043 


peared  to  these  informations,  on  the  first  day  of  the  term,  I confess 
I was  most  anxious  to  obtain  a postponement  of  their  trial.  I was 
apprehensive  that  in  the  unexampled  ferment  of  the  public  mind  it 
would  have  been  impossible  to  procure  for  them  a fair  and  impar- 
tial hearing.  What  corner  is  there  of  the  land;  what  shore  so 
lonely  and  remote;  what  glen  or  valley  so  silent  and  sequestered, 
that  has  not  been  disturbed  by  the  din  of  this  extraordinary  pro- 
ceeding ? The  innumerable  addresses  pouring  in  day  after  day  and 
hour  after  hour,  from  almost  every  county,  from  every  corporation — 
the  church,  the  university,  the  capital — collectively  in  an  aggregate 
meeting,  distributively  in  parish  meetings,  taking  guilt  for  granted, 
anticipating  conviction,  and  imploring  punishment  upon  these  yet 
untried  individuals;  while  the  answers  of  the  Lord  Lieutenant  to 
those  addresses,  by  their  rich,  ever-varying,  and,  let  me  add,  most 
agitating  eloquence,  kept  alive  and  fanned  the  popular  flame  until 
it  had  become  a consuming  fire.  At  one  period,  I am  convinced, 
all  hope  of  a fair  investigation  would  have  been  utterly  vain,  and 
these  men  must  have  come  before  the  tribunals  of  justice  like  vic- 
tims bound  and  bleeding  at  the  foot  of  the  altar,  and  ready  for  im- 
molation. Thank  God,  however,  that  dreadful  interval  is  past 
The  first  gleam  of  safety  and  deliverance  broke  from  the  darkest 
quarter  of  the  heavens,  and,  through  the  merciful  interposition  oi 
providence,  was  at  length  afforded  by  the  extravagance  and  exag- 
geration of  our  enemies.  The  most  violent  were  startled  into  re- 
flection; the  most  intemperate  were  stunned  into  sobriety,  by  the 
monstrous  and  incredible  charge  of  assassination  and  murder;  yet 
the  sea  still  rolls  and  heaves  though  the  storm  has  subsided,  and  I 
am  well  warranted  even  now  in  demanding  from  you,  on  the 
ground  of  the  public  agitation  alone,  a more  than  ordinary  vigi- 
lance and  attention. 

But  there  is  yet  another  circumstance  which  characterizes  this 
case,  and  entitles  me  to  call  for  the  most  scrutinizing  jealousy,  and, 
gentlemen,  it  is  this:  that  there  exists  in  this  case  an  inauspicious 
and  unnatural  alliance  between  the  natural  favorites  of  the  people 
and  the  official  servants  of  the  crown — an  alliance  at  all  times  most 
dangerous  to  the  rights  and  privileges  of  the  subject.  Never  are 
they  in  such  imminent  hazard  as  when  the  resentment  of  the  court 
and  the  rage  of  the  people — the  vultits  instantis  tyranni  and  the 
civiu7n  ardor  prava  jubentium — unite  in  one  common  object  and 
concur  in  the  same  design.  When  those  two  antagonist  forces, 
popularity  and  power,  conspire  in  the  same  direction,  their  strength 


CM 


SPEECH  OF  JOHN  HENRY  NORTH 


is  irresistible;  the  floodgates  of  oppression  are  thrown  wide  open, 
and  our  liberties  and  laws  are  borne  down  by  an  overwhelming  tor- 
rent. I am  fully  convinced — I do  most  sincerely,  and  from  my 
heart,  believe,  it  was  no  consciousness  of  the  support  to  be  derived 
from  this  alliance,  but  a sense  of  duty,  which,  however,  I must 
consider  a mistaken  one,  that  induced  the  attorney-general  to  adopt 
this  strange  and  hitherto  unheard-of  proceeding. 

I.  A PROCEEDING  BASED  UPON  AN  EX  OFFICIO  INFORMATION, 
ILLEGAL  AND  WITHOUT  PRECEDENT. 

It  is,  I believe,  as  yet  unknown  in  the  annals  of  our^  jurispru- 
dence, that  the  self-same  charge  which  has  been  dismissed  by  the 
verdict  of  a grand  jury  should  be  brought  forward  again  by  an 
attorney-general,  upon  an  appeal  to  his  own  private  judgment. 
Gentlemen  of  the  jury,  this  is  new;  and  I expected  therefore,  when 
this  case  was  opened,  that  some  precedent,  some  authority,  some 
dictum  at  least,  would  have  been  cited  in  support  of  it.  For  see  to 
what  it  leads:  if  this  course  of  proceeding  is  to  be  sanctioned,  the 
authority  of  a grand  jury  is  annihilated,  and  the  institution  itself 
becomes  a mere  formal  nullity.  They  are  intrusted  with  just  power 
enough  to  forward  the  objects  of  the  crown  by  finding  bills  accord- 
ing to  its  wishes;  but  if  they  presume  to  ignore  them,  their  judg- 
ment is  set  aside  as  a matter  of  course  by  the  attorney-general, 
who  files  his  ex  officio  information.  Preferring  bills  to  a grand  jury 
under  circumstances  like  these,  seems  to  me  a circuitous  and  un- 
necessary proceeding.  It  would  surely  be  better  and  more  seemly 
that  the  affront  thus  given  to  them  should  be  dispensed  with,  and 
that  the  attorney-general  should  file  his  information  at  once. 

But,  it  is  said,  an  authority  is  to  be  found  for  this  singular  mode 
of  proceeding,  which  has  been  hunted  out  of  the  Commons  journals 
of  Ireland.  The  attorney-general  mentioned  this  case,  by  a piece 
of  admirable  forensic  address,  to  evade  the  force  of  it;  because,  as 
far  as  it  is  any  authority  at  all,  it  is  decidedly  against  him.  Bills, 
it  appears,  had  been  sent  up  to  the  grand  jury,  and  returned  by 
mistake  indorsed  as  true.  The  foreman,  and  afterwards  the  other 
members  of  the  jury,  made  affidavits  that  they  had  intended  to 
ignore  the  bills.  On  the  motion  of  the  attorney-general,  the  in- 
dictments were  then  quashed,  and  he  filed  an  ex  officio  information. 
But  what  was  the  consequence  ? The  matter  attracted  the  imme- 
diate attention  of  the  House  of  Commons.  They  entered  warmly 
into  the  subject,  appointed  a committee  to  search  for  precedents, 


IN  REX  v;  FORBES  AND  OTHERS. 


645 


and  having  inquired  from  the  members  of  the  House  who  belonged 
to  the  legal  profession,  whether  any  existed,  were  by  them  informed 
that  such  a proceeding  was  wuthout  example.  An  ex  officio  infor- 
mation, even  in  those  circumstances  under  which  it  is  ordinarily 
filed,  is,  to  say  the  least  of  it,  a severe  exercise  of  the  prerogative; 
but  an  information  of  this  nature,  after  bills  had  been  ignored  by 
a grand  jury,  is  without  example;  at  least  I have  not  been  able  to 
discover  one,  and  my  search  has  been  laborious,  since  the  institu- 
tion of  grand  juries  itself  has  been  transmitted  to  us  from  our 
Saxon  ancestors.  What  says  Sir  Matthew  Hale,  that  great  model 
of  Christian  piety,  political  integrity,  and  legal  wisdom  ? “ In  all 

criminal  cases,  the  safest  mode  of  proceeding,  and  the  most  conso- 
nant to  the  statutes  of  Magna  Charta,  is  by  presentment  or  indict- 
ment of  twelve  sworn  men.”  What  says  Mr.  Fox,  who  brought  to 
the  study  of  the  Constitution  the  knowledge  of  a statesman  as  well 
as  of  a lawyer  ? ‘‘  There  are,”  he  observes,  “ two  great  mainsprings 
in  the  Constitution,  which,  if  preserved  in  unimpaired  vigor,  the 
other  parts  may  be  occasionally  repaired;  but  if  these  be  suffered 
to  decay,  the  whole  system  will  fall  into  confusion;  and  these  two 
mainsprings,”  says  he,  “ are  the  representation  of  the  people  in  the 
Commons  House  of  Parliament,  and  the  juridical  power  of  the 
people  through  the  medium  of  the  grand  and  petty  jury.”  I have 
dwelt  upon  this  topic,  because  I feel  its  importance.  They  are  not 
obviously  violent  or  arbitrary  measures  that  we  have  reason  to  ap- 
prehend, so  much  as  those  silent  encroachments  upon  the  Consti- 
tution, which  are  the  more  dangerous,  because  they  are  the  less 
glaringly  perceptible.  A precedent  of  this  kind,  my  Lords,  is  al- 
ways fruitful,  and  the  progeny  is  ever  more  mischievous  than  the 
parent.  It  is  against  such  attempts  that  we  are  warned  by  a cele- 
brated writer,  who  has  become  a classic  in  our  language.  “ One 
precedent,”  says  he,  ‘‘creates  another.  They  soon  accumulate  and 
constitute  law.  What  yesterday  was  fact,  to-day  is  doctrine.  Ex- 
amples are  supposed  to  justify  the  most  dangerous  measures,  and 
when  they  do  not  suit  exactly,  the  defect  is  supplied  by  analogy.” 
Therefore,  although  it  would  be  in  me  an  indecorous  presumption, 
before  their  lordships  have  intimated  an  opinion,  to  pronounce  this 
proceeding  absolutely  illegal;  yet  here,  in  the  presence  of  this  high 
court,  before  that  learned  bar,  and  in  the  face  of  the  whole  country, 
I do  arraign  it  as  discountenanced  by  all  great  authority,  as  with- 
out the  warrant  of  any  sound  precedent,  as  alien  to  the  mild  spirit 
of  the  British  law,  and  practically  and  essentially  unconstitutional. 


646 


SPEECH  OF  JOHN  HENRY  NORTH 


2.  The  charges  and  the  evidence. 

Gentlemen,  having  made  these  observations  on  the  nature  of 
the  proceeding,  let  me  now  examine  the  charge  contained  in  the  in- 
formations, and  the  evidence  adduced  in  support  of  it.  The  offense 
charged  is  a conspiracy  to  insult  and  assault  the  Lord  Lieutenant 
in  the  public  theater.  I shall  not  examine  the  information  as  a 
special  pleader.  I do  not  condescend  to  legal  subtleties.  I say, 
that  is  the  charge  bona  fide  and  substantially;  and  the  attorney- 
general  is  of  a character  far  too  sincere  and  manly  to  pretend  that 
there  is  any  other.  I say  it  in  his  hearing,  and  without  fear  of 
contradiction,  that  the  benches  of  the  pit  might  have  been  torn  up, 
the  panels  of  the  boxes  broken  in,  and  every  luster  in  the  house 
demolished,  before  he  would  have  filed  an  ex  officio  information,  if 
the  Lord  Lieutenant  had  not  been  in  the  theater.  There  are  cir- 
cumstances in  this  case  ridiculous  enough;  but  the  great  absurdity 
does  not  attach  to  it,  of  our  being  assembled  here,  day  after  day, 
in  the  middle  of  term,  before  the  whole  court,  upon  a solemn  trial 
at  bar,  to  ascertain  whether  or  not  there  has  been  a riot  in  the 
upper  gallery.  No,  gentlemen;  this  is  emphatically  a State  trial, 
for  State  purposes;  and  the  question  which  is  now  before  you  and 
before  the  country,  the  issue  which  you  have  to  try,  is  whether 
these  men  conspired  together  personally  to  insult  or  assault  his 
Excellency  the  Lord  Lieutenant. 

3.  Loyalty  the  chief  characteristic  of  Orangemen. 

The  first  circumstance  which  the  attorney-general  has  brought 
forward  (for  I must  take  the  liberty  of  following  him  through  a part 
of  his  statement),  as  giving  color  to  the  accusation,  is,  that  the  de- 
fendants belong  to  the  society  of  Orangemen.  They  do  so;  it  is 
the  fact;  they  do  not  disguise  it;  they  glory  in  it;  it  is  their  boast 
that  they  are  Orangemen.  Gentlemen,  I do  not  stand  here  to  give 
my  applause  to  that  institution.  Perhaps  my  private  opinion  may 
be  that  it  is  not  calculated  to  accomplish  the  ends  it  was  originally 
instituted  to  attain.  Perhaps  it  may  be  my  private  opinion  that  it 
is  not  likely  to  advance  public  prosperity,  or  to  promote  national 
security,  happiness  or  peace.  But  what  of  that  ? I have  the  mis- 
fortune on  this  subject  to  differ  from  some  of  the  greatest,  wisest, 
and  most  experienced  men  in  the  country.  But  whether  they  or  I 
be  right  in  this  respect,  is  not  the  question.  The  question  is  this: 


IN  REX  V.  FORBES  AND  OTHERS. 


U7 


Whatever  men  of  this  description  have  been  charged  with,  whether 
illiberality  of  sentiment,  mistaken  opinions — a wrong  political  bias 
— have  they  ever  been  accused  of  disloyalty  ? Has  that  ever  been 
one  of  the  crimes  imputed  to  them  ? Have  they  ever  been  re- 
proached with  want  of  loyalty  to  their  king,  or  disloyal  disrespect 
for  the  king’s  representative  ? Why,  gentlemen;  the  loyalty  of  these 
men  is  the  bond  which  unites  them.  It  is  an  inborn,  inbred  quality 
of  their  nature,  growing  with  their  growth,  and  strengthening  with 
their  strength — part  of  their  bone  and  their  flesh.  Theirs  is  not 
the  loyalty  which  is  assumed  for  a purpose;  which  comes  in  and 
goes  out  with  an  occasion;  which  compounds  for  factious  insolence 
to-day,  by  cringing  adulation  to-morrow.  It  is  a steady,  permanent, 
unfailing  principle  of  action.  More  than  a principle— it  is  a pas- 
sion. Their  enemies  say,  it  is  a prejudice.  Perhaps  it  is  all  three, 
and  has  the  strength  of  all  three  united.  I do  not  hesitate,  there- 
fore, to  say,  that  a charge  of  disloyalty,  or  of  anything  approaching 
to  disloyalty,  made  against  such  men,  is  prima  facie^  and  upon  the 
first  opening  of  it,  glaringly  improbable. 

4.  Propriety  of  decorating  King  William’s  statue  dis- 
cussed.— Scene  when  the  ceremony  was 

FORBIDDEN. 

But  the  attorney-general  has  adverted  to  certain  circumstances 
in  the  history  of  this  country,  which,  he  presumes,  may  take  off  in 
your  estimation  this  first  apparent  improbability.  For  this  purpose 
he  has  called  your  attention  to  that  State  measure  of  his  majesty’s 
government  as  he  has  now  instructed  us  it  was;  but  it  is  a fact  of 
which  the  public,  or  at  least  I may  say  myself,  had  not  been  previ- 
ously apprised — I mean  the  interruption  to  the  dressing  of  the 
statue  of  King  William.  Upon  that  subject,  gentlemen,  I may 
venture  to  give  my  opinion,  because  I am  not  restrained,  as  the 
attorney-general  is,  by  the  reserve  which  belongs  to  a high  official 
situation.  I say,  therefore,  it  is  my  sincere  opinion,  that  that  idle 
ceremony  ought  to  be  discontinued.  I have  felt  all  my  life,  that 
everything  in  the  slightest  degree  offensive  to  my  Roman  Catholic 
fellow-subjects  ought  to  be  studiously  and  anxiously  avoided. 
There  does  not  live  a man  more  desirous  than  myself  that  they 
should  be  admitted  to  the  fullest  privileges  of  the  British  Constitu- 
tion, and  maintained  in  the  secure  enjoyment  of  every  advantage, 
honor,  and  distinction,  which  may  be  the  acquisition  of  industry, 
the  prize  of  talents,  or  the  reward  of  virtue.  These  are  the  senti- 


648 


SPEECH  OF  JOHX  HENRY  NORTH 


ments  which  I have  always  avowed,  in  private  and  in  public,  in  pe- 
titions to  the  legislature,  in  requisitions  to  the  magistrates  to  as- 
semble meetings  for  the  purpose  of  petitioning,  and  in  canvassing 
for  a seat  in  the  House  of  Commons  amongst  electors  exclusively 
Protestant.  Gentlemen,  notwithstanding  these  impressions,  and 
notwithstanding  my  opinions  on  the  particular  subject  itself  of  un- 
dressing the  statue,  and  which  opinions  I had  expressed  somewhat 
strongly  and,  perhaps,  imprudently,  I will  frankly  own  to  you,  that, 
when  the  thing  itself  occurred,  I was  taken  by  surprise.  Never 
shall  I forget  the  emotions  which  I felt  when,  on  the  4th  of  Novem- 
ber, I walked  down  to  College  Green  and  beheld  the  scene  which 
was  there  exhibited.  When  I saw  the  statue  of  that  illustrious 
monarch,  which,  though  I had  not  been  so  much  accustomed  to 
reverence  it,  was  so  dear  to  my  fathers  and  my  kinsmen,  stripped, 
for  the  first  time,  of  its  accustomed  honors,  deprived  of  those  an- 
nual decorations  which  had  been  the  old  man’s  pleasure  and  the 
poor  man’s  pride,  surrounded  by  armed  horsemen  with  drawn 
swords,  hemming  in  and  closing  on  the  captive  hero;  it  seemed  to 
me,  for  a moment,  as  if  a successful  invasion  had  been  effected  on 
our  shores,  as  if  military  occupation  had  been  taken  of  the  capital, 
and  some  Scythian  barbarian,  from  the  Tanais  or  the  Volga,  was 
heading  the  licentious  troop,  triumphing  in  the  heart  of  the  city, 
and  with  his  flickering  sabre,  menacing  and  insulting  the  venerable 
monument  of  our  laws,  our  liberties,  and  our  religion. 

5.  The  attorney-general’s  tribute  to  the  memory  of  King 
William. — Right  of  defendants  to  respect 

HIS  MEMORY. 

Gentlemen  of  the  jury:  When  such  were  my  feelings,  thinking 
as  I do,  and  with  the  political  sentiments  which  I entertain,  and 
having  my  views  upon  the  great  subject  of  Catholic  claims,  what, 
I leave  you  to  suppose,  were  the  feelings  of  men  who  thought  dif- 
ferently from  me,  who  believed  that  Protestant  rights  and  Protest- 
ant privileges,  and  all  that  is  meant  by  Protestant  ascendancy,  were 
main  props  and  pillars  of  the  British  Constitution,  and  that,  with- 
out them,  there  was  no  security  for  Protestant  property  or  peace  ? 
What,  I ask  you,  were  likely  to  be  their  feelings  ? The  attorney- 
general  has  done  justice  to  them;  he  has  portrayed  the  character 
and  sketched  the  history  of  King  William.  I shall  not  attempt  to 
follow  him  there;  I shall  not  enter  into  any  such  vain  and  foolish 
emulation;  I might  as  well  think  to  shoot  arrows  at  the  sun.  Gen- 


IN  EEX  V.  FORBES  AND  OTHERS.  040 

tlemen,  you  have  heard  that  fine  description.  The  attorney-general 
has  laid  his  offering  on  the  altar  of  King  William;  an  offering  of 
his  own  workmanship,  fresh  from  the  mint  of  his  transcendent 
genius,  and  glov/ing  with  all  those  divine  attributes  and  godlike 
qualities  which  the  powers  of  a sublime  eloquence  enabled  him  to 
stamp  upon  it.  But  let  him  not,  therefore,  sneer  at  the  poorer  of- 
fering of  humbler  m.en  to  the  same  object  of  their  worship;  his 
gift  was  one  every  way  worthy  of  him,  suited  to  his  extraordinary 
talents,  his  refined  taste  and  superior  education;  but  we  are  taught 
to  believe  that  the  rude  wonder  of  the  shepherds  was  as  acceptable 
as  the  gold,  frankincense  and  myrrh  of  the  eastern  kings.  The 
attorney-general  has  taunted  these  poor  men  with  their  want  of 
taste;  the  sashes  and  scarfs  with  which  they  decorated  the  statue 
were  tawdry  and  vulgar,  it  seems,  and  the  mantua-maker  of  King 
William,  as  he  termed  him,  did  not  adjust  his  millinery  as  well  as 
he  might.  But,  gentlemen,  this  is  not  a point  of  taste;  it  is  a mat- 
ter of  feeling.  The  soldier,  in  the  field  of  battle,  clings  with  as 
much  devotion  and  fidelity  to  his  tattered  colors  as  if  they  displayed 
the  painting  of  Rubens  or  the  designs  of  Raphael.  I,  therefore, 
claim  for  these  men  what  the  attorney-general  has  demanded  for 
himself;  I claim  for  them  the  right  to  express,  in  their  own  homely 
dialect  and  after  their  own  vulgar  and  tasteless  manner,  if  you  will 
have  it  so,  their  respect  for  the  memory  of  King  William,  and  their 
gratitude  for  the  benefits  which  he  has  conferred  upon  them  and 
on  their  country. 

But  such  sentiments  or  such  expression  of  them,  you  may  tell 
me,  are  not  justified  by  philosophy  and  reason;  and  if  you  will 
argue  the  point  with  me  like  metaphysicians  or  professors,  per- 
haps I shall  be  compelled  to  admit  that  they  are  not;  but  be  it  that 
they  are  not  reason,  I tell  you  they  are  nature.  There  is  a prin- 
ciple implanted  in  the  human  breast  for  the  highest  and  the  noblest 
purposes,  that,  by  attractions  which  we  cannot  always  explain,  but 
which  we  never  can  resist,  draws  us  together  into  bands  and  com- 
panies of  kindred  feeling.  Sometimes  it  is  the  recollection  that  we 
are  sprung  from  the  same  endeared  and  consecrated  soil;  sometimes 
the  spirit-stirring  thought  that  we  have  drawn  our  loyal  swords  in 
defense  of  the  same  sovereign  and  the  same  law,  or,  perhaps,  the 
touching  remembrance  that  we  have  bowed  together  before  the  altar 
of  a common  faith.  Whatever  they  may  be,  they  are  the  links  that 
join  heart  to  heart;  the  fine  chords  that  bind  man  to  man,  that  are 
as  sensitive  as  they  are  strong,  and  never  yet  were  broken  with  im- 


650 


SPEECH  OF  JOHN  HENRY  NORTH 


punity.  If  the  attorney-general  had  consulted  the  illustrious  per- 
son at  the  head  of  his  majesty’s  government  in  this  country,  he 
would  have  told  him  that  even  the  feeble  pliant  Hindoo  who  bows 
his  neck  beneath  the  yoke  of  every  conqueror,  Christian  and  Ma- 
hometan, Tartar  and  European,  will  not  permit  one  darling  rite, 
one  ancient  usage,  one  cherished  prejudice  to  be  touched,  revolted 
or  disturbed.  Not  Tamerlane  nor  Zingis,  not  Clive  nor  Wellesley, 
in  the  plentitude  of  their  power,  ever  dared  to  assail  him  in  the 
sanctuary  of  his  feelings;  and  shall  Irishmen  endure  in  tame  and 
uncomplaining  submission,  what  would  not  be  borne  by  the  feeble 
and  enslaved  Hindoo  ? 

6.  The  real  object  of  the  Lord  Lieutenant’s  visit  to 

THE  THEATER. 

• I am  so  far  from  wishing  to  conceal,  then,  that  the  discontinu- 
ance of  the  annual  commemoration  of  King  William’s  birth-day 
gave  dissatisfaction  to  a certain  class  of  his  majesty’s  subjects,  that 
I freely  admit  it.  I admit  also  that  to  this  class  the  defendants  be- 
longed. Let  us  now  inquire  how  far,  and  to  what  extent,  their  dis- 
pleasure carried  them.  Apply  yourselves  with  diligence  to  this 
inquiry,  for  it  is  the  issue  you  are  to  try.  When  the  Lord  Mayor 
published  his  proclamation  to  prohibit  the  decoration  of  the  statue, 
a considerable  degree  of  irritation  was  produced.  It  was  not  con- 
fined to  the  defendants;  it  was  felt  by  their  fellow-citizens  of  a 
higher  order,  and  expressed  in  resolutions  of  the  common  council 
and,  I believe,  some  of  the  guilds.  In  this  state  of  the  public 
mind,  and  while  men  were  under  the  influence  of  these  feelings,  the 
Lord  Lieutenant,  who  had  now  been  nearly  a year  at  the  head  of 
the  government,  announces  his  intention  of  publicly  visiting  the 
theater  for  the  first  time.  Pause,  gentlemen,  and  ask  yourselves  for 
what  purpose  a Lord  Lieutenant  visits  the  theater.  Let  no  man 
deceive  you  into  a notion  that  he  goes  there  for  the  sole  object  of 
witnessing  the  spectacle.  There  is  another  and  principal  purpose 
to  which  this  is  collateral  and  subordinate — the  purpose,  namely,  of 
receiving  the  applauses  of  the  people  and  publicly  manifesting  the 
popularity  of  his  administration.  If  he  should  be  fortunate  enough 
to  receive  these  testimonies  of  public  approbation,  the  fact  is  im- 
mediately signified  to  the  government  in  England.  It  appears  in  the 
official  papers,  and  is  understood  to  bestow  lustre,  if  it  does  not 
confer  strength,  on  the  ministers  of  the  crown. 


IN  REX  V.  FORBES  AND  OTHERS. 


651 


7.  A PROTEST  AGAINST  UNMERITED  APPLAUSE  NO  CRIME. 

Now,  gentlemen,  it  so  happens  that  I feel,  or  that  Graham  feels, 
or  that  Handwich  feels,  that  the  Lord  Lieutenant  does  not  deserve 
this  popularity  which  he  thus  publicly  looks  for.  We  are  unwilling 
that  our  sentiments  should  be  misunderstood,  as  they  would  be  if 
the  Lord  Lieutenant  were  received  with  universal  and  unanimous 
applause.  I protest  I have  yet  to  learn  that  there  is  anything  crim- 
inal in  going  to  the  theater  to  oppose  the  tide  of  that  popularity 
which  I think  unmerited,  or  in  refusing  to  join  in  those  plaudits  by 
which  it  is  evinced.  And  yet  has  any  other  offense  been  proved 
against  these  men  ? We  were  told,  and  the  nation  actually  believed 
it,  that  an  attempt  had  been  made  to  assassinate  the  Lord  Lieu- 
tenant. But  what  are  the  facts  disclosed  by  the  witnesses  ? That 
a number  of  persons  of  the  purest  and  most  untainted  loyalty, 
meeting  in  their  Orange  lodges,  agree  together  to  assemble  on  the 
night  of  the  Lord  Lieutenant’s  going  to  the  theater — in  the  upper 
gallery — why  be  it  so;  but  what  to  do  there  ? to  perpetrate  what  ? 
deadly  treason  ? Why,  after  “ God  save  the  King  ” had  been  played, 
to  call  for  the  Boyne  Water,”  to  let  the  Lord  Lieutenant  know 
what,  perhaps,  had  been  concealed  from  him  by  his  confidential  ad- 
visers, that  there  were  men  of  too  humble  a rank  to  approach  his 
person  and  attend  his  levees,  yeomen,  and  artificers,  who  still  loved 
the  old  favorite  and  once  national  air  of  the  “Boyne  Water,”  who 
felt  their  blood  warmed  and  their  hearts  cheered  by  its  notes,  and 
kindling  within  them  the  spirit  of  their  conquering  ancestors. 
Gentlemen,  they  assembled  for  that  purpose,  and  for  that  purpose 
only.  I beg  pardon — there  might  have  been  another.  I will  not 
say  it  was  no  part  of  their  intention  to  show  signs  of  disapproba- 
tion on  the  appearance  of  the  Lord  Mayor.  But  I have  yet  to 
learn  that  that  worshipful  person  comes  within  the  statutes  of  trea- 
son, or  that,  in  the  dignity  of  Lord  Mayor,  there  is  anything  ex  vi 
termini^  to  speak  with  the  grammarians,  or  ex  officio^  to  speak  with 
the  attorney-general,  which  gives  him  the  protection  of  prerogative. 
I never  heard  that  he  could  touch  for  the  king’s  evil,  or  that  royal 
virtue  emanated  from  the  white  wand  and  gold  chain.  The  Lord 
Mayor  is,  I dare  say,  a very  excellent  man  and  a very  worthy  magis- 
trate, and,  like  his  predecessor  in  the  Commons’  journals,  he  may 
yet  be  knighted  for  his  political  merits;  but  it  is  no  misprision  of 
treason  to  hiss  him  in  the  theater. 


652 


SPEECH  OF  JOHN  HENRY  NORTH 


8.  The  defendants  never  contemplated  personal 

VIOLENCE. 

To  call  for  the  “Boyne  Water”  then,  and  possibly  to  hiss  the 
Lord  Mayor,  these  men  assembled.  But  take  this  with  you,  that 
when  they  made  these  determinations,  it  was  no  part  of  the  agree- 
ment; nay,  it  was  expressly  guarded  against  by  the  agreement,  that 
any  personal  violence  should  be  offered,  or  any  personal  insult  or 
offense  given  to  the  Lord  Lieutenant.  We  have  that  upon  the  evi- 
dence of  George  Atkinson.  We  have,  further,  that  when  they  were 
collected  at  Ship  street,  one  of  them  seeing  his  companions  with 
sticks,  advised  that  they  should  be  left  behind,  lest  by  any  accident 
they  might  lead  to  mischief.  Nor  would  the  witness  swear  that 
this  advice  was  not  taken  by  many.  Others,  indeed,  thought  that 
they  were  sufficiently  masters  of  themselves,  not  to  be  exposed  to 
this  danger;  and  others,  again,  no  doubt,  believed  them  requisite  to 
their  safety.  It  was  amusing  enough  to  hear  the  terms  in  which 
these  sticks  were  described.  One  witness  told  us,  very  significant- 
ly, they  were  short  sticks,  and  another  disclosed  the  prodigious 
fact  that  they  had  knobs  at  the  end  of  them;  but  that  any  improper 
use  was  made  of  them,  of  this  there  was  no  evidence  at  all. 

Any  one  who  knows  the  powers  of  the  attorney-general,  must 
be  perfectly  aware  that  it  is  with  him  a matter  of  the  greatest  facil- 
ity to  represent  the  plainest  and  simplest  facts  in  such  a manner  as 
to  make  them  appear  strange,  startling  and  extraordinary.  Never 
have  I seen  him  exert  this  wonderful  talent  to  the  same  degree  as 
on  the  present  occasion.  I know  not  whether  you  have  yet  re- 
covered from  the  emotions  which  his  speech  excited.  But  the 
moment  that  George  Atkinson  was  examined,  no  man,  with  the 
slightest  experience  in  courts  of  justice,  but  must  have  perceived 
that  the  fabric  which  he  had  so  artfully  built  up  in  the  statement 
was  crumbling  and  dilapidating  before  the  evidence.  Admitting 
every  word  spoken  by  George  Atkinson  to  be  true,  is  there  any 
other  conspiracy  proved  than  a conspiracy  to  call  for  the  “ Boyne 
Water”  after  “God  save  the  King,”  and  to  show  the  Lord  Lieu- 
tenant, by  the  expression  of  their  feelings,  that  with  them  at  least 
he  was  unpopular. 

But  they  had  a further  object,  it  is  said— to  drive  the  Lord 
Lieutenant  from  the  theater,  and  eventually  from  the  country- 
Here  is  one  of  the  ingenious  but  cruel  artifices  I complain  of.  See 
the  turn  that  is  given  to  the  evidence.  It  was  said,  proposed, 


IN  REX  V.  FORBES  AND  OTHERS. 


653 


agreed,  that  they  should  go  together  to  the  theater  and  call  for  the 
“Boyne  Water;”  “he  will  then  see,”  says  some  one,  “that  he  is  not 
liked,  and  perhaps  in  disgust,  for  he  is  a sensitive  man,  he  may 
leave  the  theater;”  “ and  perhaps,”  says  another,  yet  more  sanguine, 
“ perhaps,  with  the  blessing  of  God,  he  may  leave  the  country,  too.” 
Something  of  that  sort  was  probably  said.  But  will  you  believe 
that  it  was  part  of  the  original  design,  one  of  the  direct  objects 
then  in  contemplation,  to  drive  the  Lord  Lieutenant  that  night 
from  the  theater  and  afterwards  from  the  country  ? Drive  him 
from  the  theater!  How  ? Where  were  the  means  ? Exquisite  ab- 
surdity! What  were  the  arms  they  had  collected  for  this  great  un- 
dertaking ? What  were  the  weapons,  swords,  guns,  pistols,  pikes, 
to  be  used  for  his  expulsion  ? 

I think  I see  these  dreadful  conspirators  in  close  divan  seated 
round  a table  in  full  council:  “We’ll  have  him  off,  that’s  poz;  but, 
brother,  what  will  you  arm  yourself  with  ?”  “ I’ll  arm  myself  with  a 

whistle;  I’ll  whistle  him  off.”  “Ah,”  says  the  musician,  “there’s 
nothing  like  the  Boyne  Water.”  If  there  was  a tailor  amongst 
them,  an  assassinating  tailor,  he,  to  be  sure,  would  “ his  quietus 
make  with  a bare  bodkin.”  The  majority,  however,  are  for  a 
bottle  and  rattle,  and  with  these  armamentaria  belli  they  repair  to 
the  scene  of  action,  the  upper  gallery.  And  now  observe  how  they 
conduct  their  operations.  In  the  first  place,  it  would  be  prudent 
one  would  think,  if  one  meant  to  assassinate  another,  to  get  as  near 
to  him  as  possible;  but  our  wise  conspirators  take  another  view  of 
the  case,  and  the  Lord  Lieutenant  being  close  to  the  stage,  they 
file  off  to  the  upper  gallery.  Again,  the  Lord  Lieutenant  sitting 
on  the  left  hand  of  the  house,  and  the  object,  as  asserted,  being  to 
launch  some  missile  from  their  infernal  machine  which  should 
reach  his  person,  they  take  their  station  in  the  extreme  left  of  the 
gallery,  where  they  could  not  possibly  see  his  figure,  and  whence, 
from  the  construction  of  the  house,  the  most  dexterous  hand  could 
send  nothing  that  would  strike  him.  Nay,  what  is  more  extraordi- 
nary, if  you  believe  George  Atkinson,  they  occupied  at  first  the 
right-hand  seats,  where  they  had  a full  view  of  his  Excellency,  and 
might  take  a just  aim;  yet  this  advantage  they  immediately  resign, 
and  of  their  own  accord  quit  that  position  and  move  off  to  the  left. 
All  this  is  surprising,  and  leaves  to  the  charge  not  a shadow  of 
probability.  Were  ever  such  means  employed  for  such  ends  ? Or 
did  ever  men  possessing  the  use  of  their  natural  faculties,  having 
such  designs,  take  such  measures  to  effect  them  ? 


C54 


SPEECH  OF  JOHN  HENRY  NORTH 


9.  The  testimony  of  the  Atkinson  brothers  discredited. 

But  on  whose  evidence  does  this  whole  representation  rest,  even 
such  as  it  is?  Upon  the  testimony  of  two  brothers,  so  help  me — ■ 
the  greatest  villains  I ever  saw  produced  in  a court  of  justice.  The 
old  friends,  as  they  described  themselves,  the  sworn  associates  and 
companions,  the  ancient  allies  of  my  clients — they  steal  into  their 
confidence,  they  get  possession  of  their  secrets  and  their  hearts, 
join  with  them  in  all  their  plans,  concur  in  everything,  go  hand  in 
hand  with  them  to  the  accomplishment  of  their  common  purposes, 
and  then  they  turn  round — the  Judases,  the  Arch-traitors — they 
turn  round  upon  their  long  endeared  friends  and  sworn  brother 
Orangemen,  and  betray  them  to  their  bitterest  enemies.  Is  it  part 
of  an  Orangeman’s  oath  not  to  reveal  the  secrets  of  his  lodg§  ? I 
know  not  whether  it  be  so  or  not,  but  it  is  a matter  of  no  conse- 
quence; the  violation  of  an  oath  could  add  nothing  to  their  guilt; 
the  bond  of  an  oath  is  as  nothing  compared  wdth  the  bond  of  an 
association  like  theirs;  linked  together  by  the  same  political  feel- 
ings, by  the  bands  of  ancient  friendship,  by  the  ties  of  convivial 
fellowship  and  social  intercourse,  by  all  that  men  hold  most  dear 
and  respected — they  come  forward  to  depose  against  their  old  asso- 
ciates, to  blast  their  fair  fame  and  reputation,  and  expose  them  to 
the  full  weight  of  that  dire  persecution  with  which  the  government 
of  the  country  has  determined  to  bear  them  down.  What  was 
their  temptation  ? Is  it  lucre  ? That  seems  hardly  a sufficient  mo- 
tive for  such  complicated  iniquity;  yet  I cannot  perceive  any  other. 
There  was  no  hate,  no  jealousy  to  gratify,  no  deadly  revenge  to  be 
satiated.  When  this  trial  is  over,  let  them  receive  their  reward.  It 
is  quite  right  and  proper.  They  have  well  deserved  it.  Verily, 
verily,  they  should  have  their  reward;  but  I trust  it  will  be  in  hard 
cash.  I hope  they  will  not  be  remunerated  with  a place  in  any  de- 
partment— customs,  excise,  police,  any  department,  however  inferior 
or  subordinate;  if  they  should,  they  will  pollute  it;  they  will  carry 
into  it  infection,  contagion,  and  corruption;  they  will  dissolve  the 
ties  that  hold  man  to  man,  and  spread  through  the  community  an 
epidemic  treason. 

If  there  were  no  other  evidence  than  that  of  these  men,  would 
you  convict  any  human  being  upon  it  ? Would  you  take  a single 
limb  from  the  spider  that  crawls  upon  the  wall,  upon  the  testimony 
of  men  like  these  ? The  grave  solicitor-general,  however,  may  tell 
me  bye-and-bye,  that  they  may  yet  regard  one  solitary  virtue, 


m REX  V FORBES  AND  OTHERS. 


655 


though  they  have  ceased  to  reverence  the  rest,  and  may  tell  truth, 
though  they  have  broken  confidence.  Gentlemen,  one  falsehood 
George  Atkinson  has  unquestionably  told  you.  I am  not  a living 
man  this  moment,  if  every  word  he  swore  as  to  his  going  to  the 
park  was  not  a willful  fabrication  ^ What!  He  tells  you,  that  re- 
solved to  confederate  with  these  men,  for  purposes  which  he  would 
represent  as  of  the  blackest  nature,  and  concurring  with  them  up 
to  the  very  day  of  their  execution,  he  is  at  length  struck  with  re- 
morse, that  he  yields  to  it;  but  instead  of  giving  notice  of  the  plot 
at  the  police  offices,  or  in  any  of  the  hundred  ways  that  were  open 
to  him,  he  takes  the  extraordinary  course  of  walking  out  forthwith 
to  the  vice-regal  lodge,  to  intimate  the  fact  personally  to  the  Lord 
Lieutenant.  At  the  gate  he  is  stopped  by  the  sentinel,  who  asks 
him  what  business  he  had  there,  and  upon  this  interruption,  with- 
out one  further  effort  to  obtain  admission,  without  the  slightest  im- 
portunity, without  a word  of  remonstrance  or  expostulation,  or  the 
least  hint  of  the  nature  or  importance  of  his  business,  he  turns 
round  upon  his  heel  and  goes  straight  back  to  Dublin,  repairs  to 
Ship  street  where  his  associates  were  assembled,  becomes  the  most 
active  amongst  them,  furnishes  the  whistles,  stations  the  party  in 
the  upper  gallery,  and  takes  the  most  conspicuous  part  in  all  the 
proceedings  of  the  night;  and  after  all,  when  the  worst  had  hap- 
pened, repairs  to  Flanagan’s,  sits  down  to  supper  with  the  rest,  and 
joins  in  the  toasts  and  conversation.  Do  you  believe  him,  gentle- 
men ? Do  you,  sir?  Or  you,  or  you  ? No;  no  man  can  believe 
that  he  went  that  morning  to  the  park.  Why,  gentlemen,  see  what 
they  might  have  done.  The  crown  lawyers  might  have  produced 
the  sentinel.  They  could  ascertain  who  was  the  sentinel  that  day, 
and  procure  his  attendance  here  with  as  much  ease  as  I could  take  a 
tent  of  ink  from  that  ink-stand.  Why  is  not  the  sentinel  forthcom- 
ing ? Be  he  what  he  may,  Englishman,  Irishman  or  Scotchman, 
Roman  Catholic,  Protestant  or  Presbyterian,  I am  not  a living  man, 
as  I said  before,  if  he  would  not  give  the  lie  to  George  Atkinson, 
and  therefore  it  is  that  he  is  not  produced,  and  that  he  cannot  be 
produced.  No  intelligent  man,  whatever  may  be  his  wishes  or 
opinions,  can  believe  this  part  of  George  Atkinson’s  evidence,  and 
discrediting  him  in  that  main  fact,  you  are  bound  to  disbelieve  him 
in  every  other.  Great  latitude  is  given  to  a jury,  but  it  does  not 
extend  to  this  that  they  may  believe  a witness  to  have  sworn  de- 
liberately false  in  one  part  of  his  evidence,  and  yet  found  a verdict 
upon  the  remainder.  If  you  disbelieve  him  in  this  part  of  his  nar- 


SPEECH  OF  JOHN  HENRY  NORTH 


C5G 

rative,  I tell  you,  in  the  hearing  of  those  learned  judges,  who  will 
hereafter  direct  you  in  point  of  law,  that  you  must  expunge  the 
evidence  of  George  Atkinson  from  your  notes.  We  have  had 
enough  of  him. 

I shall  not  long  detain  you  with  his  brother.  They  were  indeed 
par  7iobile  fratrum.  I wonder  why  the  father  was  not  produced. 
He  was  waiting  here  at  the  door  to  see  that  his  sons  did  their  duty; 
to  see  whether  they  would  flinch;  whether  they  would  dare  to  look 
Forbes  and  Graham  in  the  face;  whether  their  tongues  would  not 
cleave  to  the  roof  of  their  mouths,  while  they  were  fabricating  this 
story  against  their  old  friends  and  companions.  They  maintained 
their  resolution,  though  it  cost  them  a pang.  Did  you  observe  the 
first  of  them  ? Did  you  see  the  terrors  of  his  conscience  working 
within  him — issuing  from  his  pores  and  steaming  from  his  forehead 
— a natural  embarrassment  of  utterance,  aggravated  and  increased 
by  his  guilty  confusion;  and  his  shame  and  terror  giving  obscurity 
to  his  expressions,  so  that  he  reminded  me  of  Dr.  Johnson’s  remark 
upon  the  language  which  Shakespeare  has  put  into  the  mouth  of 
Caliban,  that  it  is  clouded  by  the  gloominess  of  his  temper  and 
the  malignity  of  his  purposes.”  Every  answer  he  gave  was  at  the 
first  unintelligible.  He  was  always  obliged  to  explain;  and  when 
the  most  obvious  questions  were  put  to  him,  as:  “Why  he  did  not 
endeavor  to  dissuade  his  companions  ? ” “ Why  he  did  not  re- 

monstrate with  the  sentinel  ? ” — he  had  no  other  reply  than  it  did 
not  occur.  “ It  did  not  occur!  ” Non  mi  ricordo  was  nothing  to 
him;  and  if  his  “did  not  occur”  had  the  singularity  of  an  Italian 
phrase  to  give  it  currency,  it  would  spread  like  the  other,  and  be 
the  ready  reproach  for  every  shuffling,  stammering  and  guilty  wit- 
ness. 

It  is  not  easy  to  distinguish  between  the  evidence  of  the  two 
brothers;  yet,  perhaps,  there  are  shades  in  their  guilt.  I think,  of 
the  two,  George  is  the  worst.  John,  to  be  sure,  was  as  willing  to 
betray  his  companions;  but  he  did  not  resort  to  the  miserable  hy- 
pocrisy of  affecting  a compunction  which  he  never  felt.  When  he 
had  stated  all  for  which  he  was  produced,  he  reserved  a kind  of 
locus  penitenticE^  made  a compromise  with  his  conscience,  and  tried 
' to  lay  Up  a store  of  merit  by  telling  a little  truth.  On  his  cross- 
examination,  he  admitted  the  important  fact  that  Mr.  Forbes  had 
said,  “he  could  be  no  true  Orangemen  who  threw  the  bottle.”  The 
attorney-general  attempted  to  destroy  the  effect  of  this  admission, 
by  calling  on  the  judges  to  refer  to  their  notes  for  the  words  used, 


IN  REX  V.  FORBES  AND  OTHERS. 


G57 


and  by  observing  that  they  went  no  further  than  his  belief,  and 
were  elicited  by  a leading  question.  Be  it  so.  Who  doubts  that 
Mr.  Forbes  used  the  expression  ? If  he  had  not,  would  John  At- 
kinson have  dared  to  admit  it  ? I am  glad  he  gave  it  the  little  tack 
of  his  belief.  It  cannot  impair  the  value  of  the  evidence;  it  adds 
to  it,  because  it  shows  that  it  was  wrung  from  an  unwilling  and  re- 
luctant witness. 

Here  Mr.  North  reviewed  the  evidence  briefly  to  show  that  nothing  had  been 
proven  against  William  Graham.  He  then  referred  to  the  testimony  affecting 
Henry  Handwich,  the  person  charged  with  having  flung  the  bottle,  as  follows : 

lo.  Sketch  of  Michael  Farrell,  and  review  of  his 

TESTIMONY. 

Dismissing  William  Graham,  therefore,  I come  to  Henry  Hand- 
wich. He,  to  be  sure,  is  made  a prominent  figure  in  the  piece — 
the  assassination  part  has  been  attributed  to  him,  and  the  public 
ear  yet  vibrates  with  the  charge  that  he  flung  a bottle  at  the  Lord 
Lieutenant  from  the  upper  gallery  of  the  theater.  The  great  im- 
probability of  the  fact  I have  already  endeavored  to  show  from  the 
general  plan  and  construction  of  the  house,  and  from  the  relative 
situation  of  all  the  parties.  To  descend  a little  more  into  detail. 
By  the  evidence  of  all  the  witnesses  it  appears  that  Handwich  was 
in  the  third  row  of  the  gallery.  I don’t  know,  gentlemen,  whether 
any  of  you  have  been  there.  If  you  have,  you  must  have  found  in 
that  third  row  a number  of  wooden  pillars,  or  supports,  bearing  up 
what  is  called  the  dip  of  the  gallery,  and  which  I suppose  to  be  the 
general  cornice  of  the  house.  This  dip,  or  cornice,  is  no  more 
than  five  feet  from  the  floor;  and  under  this,  from  the  third  row,  in 
a crowded  gallery,  “cribbed,  cabined  and  confined,”  it  is  alleged 
that  Handwich  flung  the  bottle  which  was  exhibited  on  the  stage. 

Who  are  the  persons  who  attest  this  extraordinary  statement  ? 
The  first  is  Mr.  Michael  Farrell,  the  jeweller,  from  Dame  court. 
Unfortunately  we  know  of  Mr.  Michael  Farrell  no  more  than  he 
has  been  pleased  to  communicate  himself.  When  an  infant,  he 
tells  us,  he  was  taken  to  London  and  did  not  return  to  this  city  till 
about  four  years  ago.  O,  I do  wish  that  the  venue  in  this  case  had 
been  laid  in  Covent  Garden.  We  should  then,  I shrewdly  suspect, 
have  had  no  difficulty  in  dealing  with  Mr.  Michael  Farrell.  I’ll 
venture  to  say,  his  ore  rotiindo^  his  broad  O and  his  long  E are  as 
familiar  in  the  strand  as  any  London  cry.  If  these  poor  fellows 
were  rich  enough  for  such  a prosecution  as  this;  if  their  last  shil- 
42 


658 


SPEECH  OF  JOIIN^  HENRY  NORTH 


ling  had  not  been  drained  from  them,  we  might  have  got  some  in- 
formation in  London  relative  to  Mr.  Farrell;  at  present  all  we  know 
is,  that  having  gone  there  in  his  earliest  years,  and  spent  there  the 
greatest  part  of  his  life,  he  leaves,  for  what  reason  he  has  not 
informed  us,  that  great  mart  of  wealth  and  commerce,  where  no 
man  ever  took  root  and  wished  to  be  transplanted  thence,  and  sets 
up  for  a working  jeweller  in  Dame  court.  A more  pragmatical 
gentleman  I never  beheld.  He  seemed  disposed  to  lecture  us  all, 
with  such  rhetorical  flourishes,  and  such  a volume  of  voice,  that  I 
actually  trembled  for  the  windows.  He  put  me  in  mind  of  the 
famous  Mr.  Birkbeck,  who  went  some  time  since  to  the  banks  of 
the  Mississippi,  and  I have  no  doubt  we  shall,  very  shortly,  have 
his  letters  from  Dame  court,  with  remarks  on  the  capabilities  of 
Dublin,  the  facilities  of  emigration  to  Ireland,  and  notices  of  the 
manners  and  customs  of  its  savage  inhabitants.  His  evidence  is, 
that  Henry  Handwich  was  the  last  person  upon  the  left,  and  that 
behind  him  there  was  a large  empty  space — an  empty  space!  Do 
you  believe  that  on  your  oaths  ? Was  there  as  much  free  space  as 
there  is  now  next  to  me  ? Have  you  a doubt  that  the  upper  gallery 
was  not  packed  as  close  as  close  could  be;  that  the  people  were  not 
wedged  together,  with  their  elbows  pinned  to  their  sides  ? What 
was  Tiernan’s  evidence?  Tiernan,  a plain,  ready,  unsophisticated, 
natural  Irishman,  free  and  frank;  he  spoke  fast,  and  he  spoke  out; 
he  wrote  a running  hand  that  had  nothing  stiff  or  cramped  in  it, 
and  he  told  you  what  it  is  easy  to  believe:  “We  were  packed  as 
close  as  we  could  be;  there  was  no  room  to  budge;  never  was  such 
a crush,  both  to  the  sides  and  to  the  back.”  Which  will  you  be- 
lieve— the  natural  Irishman  or  the  Anglo-Hibernian  ? There  is  not 
to  be  found  a more  odious  production  of  perverted  nature  than  an 
jrish  seedling  grafted  upon  an  English  stock;  it  makes  the  worst 
and  sourest  crab;  it  is  a mixture  that  combines  all  that  is  bad  in 
each;  with  the  dogged  pertinacity,  which  is  the  worst  part  of  the 
English  character,  it  wants  the  honest  sincerity  that  redeems  it. 
Yes!  Tiernan  may  be  trusted.  If  I were  to  cross  a lonely  heath  at 
night,  Tiernan  should  be  my  man.  I’d  not  ask  Farrell  to  go  along 
with  me. 

II.  Arraignment  of  Proctor  M’Namara,  who  saw  the 
BOTTLE  “in  transit.” 

But  we  have  another  witness,  it  seems,  the  far-famed  Doctor 
M’Namara,  fresh  from  the  pound  of  Ballinakill.  Gentlemen,  you 


IN  REX  V.  FORBES  AND  OTHERS. 


650 


saw  the  peaceable  Doctor,  you  marked  his  comportment  and  de- 
meanor. “Up  I came,”  says  the  Doctor,  “from  Ballinakill,  went  to 
the  middle  gallery,  and  took  my  seat  in  the  center.  There  I was 
disporting  myself,  when  suddenly  I heard  a cry  of  ^ boys,  mind  your 
fire.’  ” Oh,  how  fortunate  it  is  that  a man  never  comes  to  fabricate 
a story,  that  he  does  not,  by  a sure  infatuation,  insert  some  little 
circumstance  that  serves  to  betray  him.  If  the  Doctor  had  said 
he  heard  the  words  “look  out,”  he  would  have  been  corroborated; 
but  now  he  is  contradicted  by  every  witness.  This  cry,  he  says, 
attracted  his  attention;  he  looked  up  and  saw  Handwich  in  the 
third  row.  The  Doctor,  in  the  middle  gallery,  sees  Handwich  in 
the  third  row  of  the  upper  one,  though  between  them  there  were 
two  benches  covered  with  people,  and  the  boarded  parapet  in  front 
of  the  upper  gallery  besides!  Through  all  these  obstacles  he  sees 
him  in  that  dark  corner  of  the  gallery  where  he  represents  him  to 
be  placed;  sees  him  fling  the  bottle,  and  is  now  able,  at  this  dis- 
tance of  time,  to  identify  his  person.  The  bottle  itself  he  saw  in 
what  he  learnedly  calls  its  transit.  A word  or  two  on  that  same 
transit.  I hold  it  physically  impossible  that  a bottle  could  have 
taken  the  course  described  by  Farrell  and  M’Namara,  from  the  up- 
per gallery  to  the  stage,  without  being  observed  by  four  or  five 
hundred  spectators.  Just  think  what  the  theater  is:  a wide,  illumi- 
nated area,  whose  bounding  surfaces  are  studded  with  eyes  as 
numerous  as  those  of  Argus.  Not  a square  inch  in  that  field  of 
view  which  was  not  painted  on  the  retina  of  some  one  eye  or  other 
in  that  vast  assembly.  Consider,  too,  the  time — the  interval  between 
the  play  and  farce — when  the  attention  of  the  audience  was  not 
fixed  upon  the  stage,  when  people  were  all  looking  about  them,  rec- 
ognizing and  greeting  their  friends  and  acquaintances.  Was  there 
no  one  to  mark  this  bottle  but  Farrell,  M’Namara,  and  the  young 
medical  student  ? What,  not  one  giggling  girl  in  the  boxes,  glanc- 
ing round  for  admiration!  not  an  opera  glass  pointed!  no  fortunate 
observer  of  the  transit  but  the  astronomer  from  Ballinakill!  Is  all 
this  credible  ? But  this  is  not  all — voonders  upon  voonders,  as  the 
Dutchman  said  when  he  got  to  London — the  greatest  miracle  is  to 
come.  Down  comes  the  bottle,  thundering  from  the  upper  gallery 
to  the  stage,  and  falls  unbroken!  If  they  had  candidly  produced 
it,  I am  instructed,  it  would  appear  to  be  one  of  those  starred  sandy 
bottles  that  fly  in  pieces  on  the  slightest  collision.  I don’t  know, 
gentlemen,  whether  you  are  aware  that  glass  is  one  of  the  most 
elastic  substances  with  which  we  are  acquainted,  far  more  elastic 


660 


SPEECH  OF  JOHN  HENRY  NORTH 


than  ivory,  which,  you  know,  is  used  for  billiard  balls  on  account 
of  its  great  elasticity.  This  is  the  property  which  makes  glass 
ring,  and  it  would  be  much  more  familiar  to  us  if  it  were  not  coun- 
teracted by  the  great  fragility  of  the  material.  If  the  bottle,  there- 
fore, did  not  break,  it  must  have  rebounded  to  the  center,  if  not  to 
the  back  of  the  pit,  supposing  it  to  have  been  thrown  from  the 
upper  gallery;  but  it  rolls  gently  along  the  stage  and  is  taken  up 
from  behind  the  foot-lights.  You  all  remember  the  prodigious  ef- 
forts made  by  counsel  for  the  prosecution  to  establish  from  the 
evidence  that  the  bottle  fell  towards  the  left  of  the  stage,  and  near 
the  Lord  Lieutenant’s  box;  but  the  fact  and  the  intended  inference 
are  at  an  end  when  it  is  recollected  that  Mr.  Barton,  from  the 
center  of  the  orchestra,  is  the  person  who  takes  up  the  bottle,  and 
who  does  so  without  rising  from  his  seat.  Who,  after  this,  will  pre- 
sume to  tell  us  that  it  was  intended  for  one  side  more  than  the 
other  ? The  truth  seems  to  be,  it  was  designed  for  the  stage,  and 
in  all  probability  came  from  the  pit  or  from  the  lattices,  after  re- 
ceiving a very  slight  and,  perhaps,  an  accidental  impulse.  Ah, 
gentlemen,  we  have  not  been  fairly  dealt  with;  indeed  we  have  not. 
Why  is  not  the  bottle  forthcoming  ? Why  is  not  Mr.  Barton  pro- 
duced ? You  know  the  insinuation  that  this  bottle  was  taken  from 
Ship  street,  and  was  the  same  which  contained  the  whisky.  Surely 
you  might  judge  of  its  contents  if  it  were  now  produced,  and  we 
should  not  be  left  to  criticisms  on  the  testimony  of  Mr.  Cahill;  you 
would  then  be  able  to  perceive  whether  it  had  been  filled  with 
porter  or  with  spirits.  These  are  facts  perhaps  of  small  moment; 
but  the  case  for  the  prosecution  is  sought  to  be  made  out  by  cir- 
cumstantial evidence,  and  the  counsel  for  the  crown  were  bound  to 
have  furnished  you  with  all  imaginable  means  of  arriving  at  a just 
conclusion. 

Here  Mr.  North  referred  to  the  testimony  as  to  what  Mr.  Forbes  had  said 
when  he  was  arrested,  when  he  declared  that  he  was  an  Orangeman,  and  would 
perhaps  be  sent  to  Botany  Bay  for  it.  He  contended  it  was  said  without  con- 
sciousness of  guilt,  openly,  and  evinced  no  criminality.  He  then  continued ; 

12.  The  conduct  of  defendants  not  criminal. — Supposed 

DIALOGUE  BETWEEN  AdDISON  AND  LORD  SOMERS. 

And  now,  gentlemen,  having  closed  my  observations  on  the  evi- 
dence and  given  you  the  means,  I hope,  to  take  the  sting  out  of 
this  charge,  allow  me  to  inquire  into  the  nature  of  the  offense  im- 
puted, if  offense  it  should  be.  Gentlemen,  I have  been  accustomed 


IX  HEX  V.  FORBES  AND  OTHERS. 


661 


all  my  life  long  to  believe  it  to  be  a privilege  possessed  by  the  peo- 
ple of  Great  Britain  and  Ireland,  to  give  free  expression  in  places 
of  public  and  general  resort  to  a popular  and  political  feeling.  We 
are  not,  indeed,  to  speak  or  to  act  to  the  terror  of  his  majesty’s 
subjects,  but  short  of  that,  I have  always  deemed  it  to  be  the  priv- 
ilege of  every  Englishman  or  Irishman  to  give  expression  in  places 
of  public  resort,  such  as  a theater,  to  his  public  and  political  senti- 
ments. If  I am  to  lose  this  privilege,  I will  not  part  with  it  with- 
out a struggle.  The  attorney-general  has  set  up  for  a theatrical 
reformer.  I think  he  will  find  it  a troublesome  task,  but  I trust  he 
will  not  expose  himself  to  the  same  censure  with  the  parliamentary 
reformers  who  have  been  so  often  reproached  with  not  furnishing  a 
specific  and  detailed  plan  of  their  projected  improvements.  If  our 
ancient  privilege  is  to  be  curtailed,  at  least,  I hope  he  will  point 
out  the  exact  limits  within  which  we  are  to  enjoy  it:  whether  it  be 
conceded  to  the  boxes,  although  refused  to  the  gallery;  and  whether, 
though  suspended  during  the  play,  it  may  not  revive  in  the  enter- 
tainment; or  whether  it  be  only  when  the  Lord  Lieutenant  is  at 
the  theater,  that  the  silence  of  La  Trappe  is  to  prevail  there.  But 
I trust  it  is  not  the  presence  of  the  Lord  Lieutenant,  no;  nor  of  the 
king  himself,  deeply  as  I reverence  him,  that  shall  ever  frown  a 
British  audience  into  Eastern  sycophancy  or  silence.  The  privilege 
I contend  for  is  not  a new  one;  it  has  been  recognized  in  all  periods 
of  our  history. 

I do  not  know  what  the  attorney-general  would  say  to  the 
trunk-maker,  described  by  Addison,  who  used  to  signify  his  ap- 
probation at  the  theater  by  beating  the  benches  with  an  oaken 
plank,  and  the  critical  correctness  of  whose  strokes  was  the  joy  of 
the  actors  and  the  delight  of  the  house.  The  Spectator  is  not  as 
much  read  now  as  it  used  to  be,  and  as  it  ought  to  be;  but,  gentle- 
men, if  you  have  not  read  that  inimitable  paper,  do  so  by  all  means 
when  you  go  home.  According  to  the  new  ex  officio  law,  however, 
the  poor  trunk-maker  would  have  been  made  the  subject  of  a State 
prosecution;  he  would  have  been  tried  at  bar.  I can  suppose 
Bishop  Hurd,  who  possessed  a charming  talent  for  writing  dia- 
logues, imagining  a conversation  between  Lord  Somers  and  Addi- 
son, after  the  appearance  of  that  paper:  we  may  conceive  Addison 
dropping  in  at  the  breakfast  table  of  Lord  Somers,  where  the  paper 
is  lying:  ‘‘Well,  my  Lord,  how  were  you  amused  with  my  last 
night’s  lucubrations  ? ” “I  was,  indeed,  charmed  and  delighted, 
Addison;  but  are  you  aware  that  your  trunk-maker  has  violated  the 


662 


SPEECH  OF  JOHN  HENRY  NORTH 


law  of  the  land,  and  that  the  attorney-general  may  file  an  ex  officio 
information  against  him  ? ” And  then  imagine  Addison,  smiling, 
with  that  inimitable  grace  which  we  may  suppose  to  have  belonged 
to  him,  and  replying:  “Yes,  my  Lord,  the  attorney-general  may 
file  his  ex  officio  information,  but  there  is  a fund  of  good  sense  and 
natural  equity  in  a British  jury  which  will  ever  make  the  trunk- 
maker  too  strong  for  the  attorney-general.”  It  is  somewhat  in  this 
manner,  perhaps,  that  Hurd  would  have  treated  the  subject. 

13.  References  to  Bolingbroke,  the  Duke  of  Rutland, 
AND  Queen  Elizabeth. 

As  I have  fallen  into  the  vein  of  story-telling,  gentlemen,  you 
will  allow  me  to  relate  another,  which  belongs  to  the  same  times,  and 
of  which  they  have  reminded  me.  There  was  a great  man  in  those 
days.  Lord  Bolingbroke.  Lord  Wellesley  resembles  him  in  some 
of  the  noblest  parts  of  his  character:  his  high  spirit,  his  inimitable 
style,  his  rich  and  flowing  eloquence.  In  the  other  and  defective 
parts  of  Bolingbroke’s  character  I believe  there  is  no  resemblance. 
He  came  into  power  during  the  four  last  years  of  Queen  Anne’s 
reign,  that  period  to  which  the  attorney-general  is  so  fond  of  ad- 
verting, when  a plan  was  formed  for  defeating  the  succession  in  the 
House  of  Hanover,  and  bringing  back  the  pretender.  He  and 
Harley,  who  were  suspected  of  entertaining  these  designs  (at  that 
time  only  surmised),  became  justly  unpopular  with  the  nation.  It 
was  in  this  crisis  of  public  feeling  that  Addison  wrote  his  cele- 
brated tragedy  of  Cato,  almost  every  line  of  which  was  intended  as 
a reflection  upon  Bolingbroke  and  his  administration.  Bolingbroke 
was  aware  of  this,  and  determined  to  be  present  at  the  performance. 
With  admirable  address,  he  took  a conspicuous  box  and  seated 
himself  in  the  full  view  of  the  whole  house.  As  the  play  pro- 
ceeded, the  pit  grew  clamorous  in  their  applause,  pointing  the  ap- 
plication of  every  stinging  antithesis  or  swelling  sentiment  to  the 
unpopular  minister.  Was  Bolingbroke  offended  ? No;  he  returned 
the  angry  gaze  of  the  people  with  a countenance  beaming  with 
smiles,  seemed  to  go  along  with  the  general  current,  was  loudest  in 
his  applause,  and  when  the  representation  was  over,  sent  for  Booth, 
who  had  performed  the  part  of  Cato,  to  his  box  and,  in  the  presence 
of  the  whole  audience,  presented  him  with  a purse  of  sixty  guineas 
for  having  defended  the  cause  of  liberty  so  well  against  a perpet- 
ual dictator.  There  was  an  example,  gentlemen — it  might  be  dis- 
respectful to  say  for  whom. 


IN  REX  V.  FORBES  AND  OTHERS.  OGS 

But  there  are  instances  nearer  home.  I am  not  old  enough  to 
remember  the  brilliant  times  of  the  Duke  of  Rutland,  but  I have 
heard  of  them.  Chivalrous  and  gallant,  generous  and  gay,  he  had 
the  faults  of  a man  of  pleasure  and  dissipation,  and  accordingly  he 
never  went  into  the  theater  that  he  v/as  not  assailed  with  some 
coarse  and  offensive  allusion  to  the  supposed  scandals  of  his  private 
life.  We  all  know  the  story  of  Peg  Plunket  and  Manners.  But 
yet  I have  never  heard  that  the  Duke  of  Rutland  instituted  a pros- 
ecution. We  are  told,  indeed,  that  on  some  of  those  occasions  he 
had  the  grace  to  blush;  but  it  is  added  that  he  always  had  the  good 
humor  to  smile.  The  privilege,  I insist  on,  has  not  only  been  con- 
ceded by  ministers  and  lord  lieutenants,  it  has  been  allowed  by 
kings.  Even  in  the  most  arbitrary  period  of  our  history,  we  find 
the  British  sovereigns  freely  presenting  themselves  to  their  people, 
and  admitting  the  right  to  censure  or  applaud  them*.  Even  the 
Tudors,  in  that  critical  interval  when  the  prerogative  stood  highest, 
after  the  ancient  aristocracy  was  dissolved  and  before  the  Commons 
had  emerged  to  wealth  and  importance,  never  disputed  this  well 
established  privilege.  Elizabeth  herself,  in  the  full  maturity  of  her 
greatness,  when  she  had  trampled  on  the  necks  of  all  her  competi- 
tors, broken  the  power  of  Spain  and  scattered  the  invincible 
armada,  even  she  did  not  dispute  it.  When,  in  a fatal  hour  of 
pride  and  irritation,  she  had  consigned  the  gallant  Essex,  the  fav- 
orite of  the  nation,  to  his  untimely  destiny;  as  she  rode  through 
the  streets  of  her  capital  to  assemble  her  parliament,  a murmur  of 
disapprobation  rose  around  her  loud  and  strong.  All-unused  to 
such  sounds,  and  spoiled,  as  she  might  well  be  supposed  to  be,  by 
the  prosperity  of  forty  years,  she  did  not  dare  to  complain:  yet  she 
possessed  a court  of  star-chamber,  she  had  a privy  council  that  as- 
sumed a criminal  jurisdiction,  she  had  an  attorney-general  ready  at 
her  slightest  beck  to  file  his  ex  officio  information.  But  she  resorted 
to  none  of  these.  She  was  too  magnanimous  a princess;  she  had 
too  much  of  an  English  heart.  No;  she  retired  to  her  chamber, 
wrung  her  hands  in  agony,  smote  her  breast,  and  recognized  within 
the  justice  of  the  people’s  censure. 

I shall  not  tarnish  the  luster  of  examples  like  these,  or  diminish 
their  effect,  by  reminding  you  of  the  well-known  interruption  given 
to  the  performances  of  Covent  Garden  theater,  which  continued  for 
sixty-six  nights  and  has  been  called  the  O.  P.  war.  There^  indeed, 
was  a riot,  something  different  from  the  “ Boyne  Water;”  and  yet, 
when  the  subject  came  into  a court  of  justice,  an  English  jury — I 


664 


SPEECH  OF  JOHN  HENRY  NORTH 


don’t  say  whether  properly  or  improperly,  right  or  wrong — but  an 
English  jury  found  a verdict  for  the  audience  against  the  manager; 
and  when  the  Chief  Justice,  Sir  James  Mansfield,  asked  the  foreman 
his  reasons  for  the  verdict,  he  informed  him  that  the  jury  did  not 
think  it  consistent  with  the  rights  of  Englishmen  to  punish  a British 
subject  for  distributing  placards  or  wearing  the  letters  O.  P.  in  his 
hat.  Gentlemen,  I am  not  holding  this  example  up  for  your  imita- 
tion. Do  not  suppose  me  capable  of  so  gross  and  palpable  an  arti- 
fice. You  will  find  your  verdict  according  to  the  evidence  and  the 
law  as  it  applies  to  it.  But  I do  mention  it  for  the  purpose  of 
showing  you  what  the  notions  and  the  feelings  of  the  British  people 
are  upon  the  rights  and  privileges  of  a British  audience;  and  we 
may  affect  what  prudery  or  delicacy  we  please  upon  these  subjects, 
I tell  you  it  is  that  sturdy  English  feeling,  that  sound  sense,  and 
crassa  Minerva,  not  to  be  duped  by  any  sophistry,  legal,  political  or 
religious,  w'hich  has  made  England  the  nation  she  is.  This  is  the 
true  source  of  her  splendor,  the  real  foundation  of  her  greatness. 

Sic  fortis  Etruria  crevit 

S«silicet  et  rerum  facta  est  pulcherrima  Roma. 

May  you  ever  partake  of  that  feeling!  May  you  ever  guard  and 
cherish  it!  May  you  ever  look  with  jealousy  on  any  attempt  on 
the  part  of  youj  rulers  to  take  from  you  the  right  of  pronouncing 
on  the  merits  of  their  government,  and  of  determining  without  ap- 
peal, whether  they  are  popular  or  unpopular.  Preserve  it  as  you 
would  the  apple  of  your  eye  or  the  life-blood  of  your  heart!  It  is 
better,  it  is  of  more  value  than  all  your  other  privileges  together. 
Without  it  they  are  paralyzed  and  lifeless.  This  is  the  soul  and 
spirit  which  gives  strength  and  animation  to  them  all. 

14.  Political  aspect  of  a verdict  considered. 

Only  one  topic  more,  gentlemen.  The  attorney-general  would 
fain  represent  to  you  that  your  verdict  may  forward  the  great  cause 
of  national  conciliation.  Oh,  gentlemen  of  the  jury,  consider  well 
before  you  suffer  your  minds  to  be  entranced  and  your  judgments 
led  along  by  so  captivating  an  argument  as  this.  I have  heard  of 
various  nostrums  and  specifics  for  the  cure  of  all  Irish  diseases. 
There  is  not  a Right  Hon.  Secretary,  or  a Right  Rev.  Bishop,  who 
comes  here  from  England,  that  does  not  bring  with  him  some  in- 
fallible receipt  of  this  description — some  cordial  or  another — some 
Dr.  Solomon’s  balm  of  Gilead,  that  is  to  take  the  vertigo  from  our 


REX  V,  FORBES  AND  OTHERS. 


CG5 


heads  and  the  acid  from  our  stomachs,  and  to  restore  us  to  polit- 
ical sanity  and  vigor.  It  was  only  the  other  day  that  the  philanthro- 
pist Mr.  Owen — indeed,  I believe  he  is  still  in  the  kingdom,  and  a 
most  excellent  and  benevolent  man  he  is — proposed  to  set  every- 
thing to  rights  by  cutting  up  the  country  into  small  square  pieces, 
and  raising  our  population  from  seven  millions  to  seven  and  twenty. 
Then  all  was  to  be  harmony  and  conciliation.  But  of  all  the  ex- 
travagant projects  I have  yet  heard  of,  surely  the  most  desperate 
and  hopeless  seems  to  be  this  of  conciliating  us  all  by  an  ex  officio 
information.  Every  man,  to  be  sure,  has  a natural  attachment  to 
his  own  profession.  I would  have  given  something  to  have  been 
present  at  the  grand  consultation  when  this  expedient  was  agreed 
on.  ‘‘What  shall  we  do,”  says  the  president  of  the  council,  “ to 
allay  the  differences  of  this  unhappy  people  ? ” “ Call  out  the  artil- 

lery,” says  the  commander  of  the  forces,  “erect  barriers  on  the 
bridges.”  “ Put  them  down  with  the  police,”  say  Mr.  Graves  and 
Mr.  Tudor.  “ Shuffle  them  well  together,”  says  the  Lord  Mayor. 
“ No,”  says  the  attorney-general,  “believe  me,  there  is  nothing  like 
an  ex  officio  information.” 

The  currier  wiser  than  all  put  together.” 

But  I will  not  sport  any  longer  with  the  subject;  it  is  too  grave, 
it  is  too  serious,  it  is  too  affecting.  Conciliation!  Conciliation! — • 
magical,  mysterious  word  ! How  often  misapplied  and  misunder- 
stood! Like  the  happiness  described  by  the  poet: 

That  still  so  near  us,  yet  beyond  us  lies, 

O’erlook’d,  seen  double,  by  the  fool  and  wise. 

Plant  of  celestial  seed,  if  dropp’d  below, 

Say  in  what  mortal  soil  thou  deign’st  to  glow. 

Alas,  gentlemen  of  the  jury,  it  is  not  within  the  precincts  of  a 
court  of  justice  we  shall  find  it  to  flourish.  Prosecutions  and  con- 
victions, the  halter  and  the  prison-bar,  are  but  coarse  instruments 
of  conciliation.  It  is  with  this  as  with  the  other  virtues  of  the 
same  family:  friendship  and  affection,  reciprocal  esteem  and  mu- 
tual forbearance.  It  possesses  that  attribute  which  Shakespeare 
has  ascribed  to  the  quality  of  mercy:  “It  is  not  strained.”  It  will 
not  be  commanded.  A king  may  place  his  throne  upon  the  sands, 
and  tell  the  stormy  wave  to  roll  back  at  his  bidding;  but  whether 
it  be  the  swelling  tide  of  popular  emotion,  or  the  bursting  billows 
of  the  tempestuous  sea,  they  will  equally  teach  him  the  littleness 


666 


SPEECH  OF  JOHN  HENRY  NORTH. 


of  all  mortal  power,  and  the  impassable  limits  which  nature  has 
prescribed  to  the  authority  of  man.  Do  not  for  a moment  suppose 
that  I mean  any  bold  and  disrespectful  allusion  to  the  parting  in- 
junctions of  his  majesty.  I remember  too  well — who  amongst  us 
does  not  remember — that  great  and  ever-memorable  day  when  the 
king  made  his  triumphal  entry  into  this  city,  when  the  hearts  of 
this  mighty  population  beat  together  in  loyal  unison  as  if  it  had 
been  the  heart  of  one  individual  man,  and  the  monarch  was  re- 
ceived among  his  people  like  a father  into  the  bosom  of  his  family. 

As  a fair  morning  of  the  blessed  spring, 

After  a tedious,  stormy  night; 

Such  was  the  glorious  entry  of  our  king! 

Enriching  moisture  dropp’d  on  everything. 

Plenty  he  sow’d  below,  and  cast  around  him  light. 

To  what  enchanting  prospects  did  we  then  surrender  our  de- 
lighted imaginations!  Why  have  these  blissful  hopes  been  thus 
severely  disappointed  ? It  is  not  because  the  great  absurdity  has 
been  attempted  of  conciliating  men  by  force — of  producing,  by 
constraint  and  violence,  that  which  is  the  natural  offspring  of  per- 
suasion ? Hence  what  we  have  seen;  hence  unfounded  committals 
upon  capital  charges,  refusal  of  bail  and  mainprise,  the  solemn 
verdicts  of  grand  juries  slighted,  scorned  and  set  at  defiance;  hence 
ex  officio  informations.  Do  not  be  persuaded,  therefore,  gentlemen 
of  the  jury,  that  any  verdict  which  you  can  pronounce  will  advance 
the  cause  of  conciliation;  believe  it  not.  You  can  find  no  concilia- 
tory verdict,  but  you  may  find  a righteous  one.  The  Lord  Lieu- 
tenant has  been  deceived  and  abused;  your  verdict  may  undeceive 
and  disabuse  him.  His  noble  mind  has  been  practiced  upon:  he 
has  been  taught  to  believe  that  he  is  surrounded  by  conspirators  and 
traitors;  that  weapons  are  raised  against  his  life;  he  has  been  in- 
duced to  bare  his  manly  breast  and  to  desire  the  assassin,  if  not 
yet  disarmed,  to  strike  now.”  Tell  him  by  your  verdict,  gentle- 
men, that  he  has  no  conspirators  to  fear;  that  he  has  no  assassins 
to  dread;  that  there  is  no  dagger  aimed  at  his  life,  but  the  “air- 
drawn  dagger  ” of  his  own  imagination.  Such  a verdict  as  this 
may  not  be  conciliatory,  but  in  my  heart  I believe  it  will  be  just; 
it  will  be  one  that  to  the  latest  hour  of  your  lives  will  receive  the 
approbation  of  your  own  consciences;  it  is  one  already  anticipated 
by  every  thinking  and  reflecting  man  in  the  community;  and  at  no 
distant  period  it  will  be  hailed  by  the  whole  country. 


SPEECH  OF  BARTHOLOMEW  HOAR. 


Opening  for  Plaintiff  in  Massy  v.  The  Marquis  of  Head- 
fort. — Damages  for  Criminal  Conversation. 

AT  ENNIS  ASSIZES,  COUNTY  CLARE,  BEFORE  BARON  SMITH 
AND  A SPECIAL  JURY,  FRIDAY,  JULY  27th,  1804. 


Damages  claimed,  ;^4o,ooo.  Amount  recovered,  10,000. 


Analysis  of  Mr.  Hoar’s  Speech. 


1.  The  narration. — Facts  and  circumstances 

of  the  case. 

2.  How  plaintiff’s  suspicions  were  aroused. 

3.  Mrs.  Massy’s  exemplary  behavior  quiets 

his  fears. — Circumstances  of  the  ab- 
duction. 


4.  Defendant’s  crime  compared  to  the 

treachery  of  pirate  wreckers.— A 
striking  simile. 

5.  Grounds  of  the  defense  anticipated  and 

discussed. 

6.  The  rule  of  damages. 


The  famous  case  of  Massy  v.  The  Marquis  of  Headfort,  tried  at  the  Ennis 
Assizes,  County  Clare,  Ireland,  Friday,  July  27th,  1804,  was  brought  to  recover 
damages  alleged  to  have  been  sustained  by  the  plaintiff  in  consequence  of  the  de- 
fendant seducing  and  taking  away  his  wife.  The  amount  claimed  was  £40,000. 
The  case  was  rendered  interesting  on  account  of  the  rank  and  station  of  the 
parties.  The  complainant  was  a clergyman  of  the  Church  of  England;  the  de- 
fendant, a peer  of  the  realm  and  an  officer  in  the  British  army.  Pie  was  the  son 
of  the  Earl  of  Bective,  and  had  been  created,  by  the  royal  favor,  a Baronet,  a 
Baron,  a Viscount,  an  Earl,  and  finally  a Marquis,  and  was  possessed  of  an  in- 
come of  £40,000  a year.  The  “lady  in  the  case”  was  remarkable  for  grace, 
beauty  and  accomplishments.  The  Rev.  Charles  Massy  was  the  second  son  of  a 
gentleman  of  rank  and  distinction  in  the  County  of  Clare.  In  March,  1796,  he 
married,  contrary  to  his  father’s  wishes,  Mary  Ann  Rosslewin,  a belle  of  eighteen, 
of  great  personal  attractions.  The  father’s  principal  objection  to  the  match  was 
based  upon  the  fact  that  the  lady  was  without  fortune.  He  desired  his  son  to 
marry  a person  of  wealth,  and  offered,  in  case  of  his  compliance,  to  settle  upon 
him  £11,000  a year  in  landed  property.  The  son,  however,  sacrificed  this  ample 
provision,  and  wedded  the  lady  of  his  choice.  For  eight  years  their  domestic 
happiness  was  unbroken.  At  the  time  of  the  plaintiff’s  misfortune,  he  lived  at 
Summer  Hill,  near  Limerick.  While  the  defendant  was  stationed  at  the  latter 
place  Mr.  Massy  made  his  acquaintance.  At  one  time  the  plaintiff  had  a living 
in  the  County  of  Meath,  where  Lady  Bective,  the  Mother  of  the  Marquis,  was 
one  of  his  parishoners.  Mr.  Massy  now  extended  to  the  son  of  his  former  parish- 
oner,  who  was  then  over  fifty  years  of  age,  every  hospitality,  as  a mark  of  respect 
to  the  Lady  Bective,  whose  memory  he  cherished  and  esteemed.  Under  such 
circumstances,  by  taking  advantage  of  the  confidence  of  his  host,  the  defendant 

[667] 


603 


SPEECH  OF  BARTHOLOMEW  HOAR 


consummated  his  diabolical  crime.  On  Sunday,  while  the  plaintiff  was  adminis- 
tering the  functions  of  his  sacred  office,  the  defendant  eloped  with  Mrs.  Massy, 
and  took  her  with  him  to  London. 

The  trial  occasioned  great  excitement,  and  the  small  town  of  Ennis  was 
crowded  with  persons  from  all  parts  of  the  country.  It  is  said  that  ten  guineas 
were  paid  for  a bed  the  night  before  the  trial,  and  large  sums  were  offered  for  a 
place  in  court  to  witness  the  proceedings.  A stenographer,  all  the  way  from 
London,  was  present  to  report  the  trial.  A large  array  of  counsel  appeared. 
For  the  plaintiff : John  Philpot  Curran,  Bartholomew  Hoar,  Henry  Dean  Grady, 
Thomas  Casey,  John  White,  Amory  Hawksworth,  William  O.  Regan,  Thomas 
Lloyd,  William  McMahon  and  George  Bennett,  Esqs.;  agent,  Anthony  Hogan, 
Esq.  For  the  defendant:  Hon.  George  Ponsonby,  Thomas  Quin,  Thomas  Goold, 
John  Franks,  Charles  Burton  and  Richard  Pinnefather,  Esqs.;  agent,  James 
Sims,  Esq. 

It  is,  indeed,  seldom  we  find  Zii  nisi pj  ius , a controversy  depending  almost  en- 
tirely upon  the  forensic  abilities  of  the  advocate,  where  the  measure  of  success 
may  be  a farthing  or  a fortune,  which  can  compare,  for  the  skillful  manner  in 
which  it  was  conducted  by  all  parties  concerned,  with  this  famous  case.  There 
was  no  dispute  about  the  fact  that  the  defendant  had  eloped  with  the  plaintiffs 
wife.  Indeed,  it  seemed,  from  the  manner  of  the  occurrence,  as  if  the  defendant 
regarded  his  crime  as  an  achievement  which  he  desired  to  render  conspicuous, 
rather  than  a disgrace  which  he  wished  to  conceal.  It  was  insisted,  however, 
that  the  plaintiff  was  at  least  guilty  of  a moral  delinquency  or  constructive  con- 
nivance in  permitting  his  wife  to  associate  with  the  Marquis,  after  knowledge  of 
the  latter’s  loose  character,  and  that,  therefore,  he  could  claim  no  compensation  on 
the  theory  that  his  own  acts  tended  to  contribute  to  his  misfortune.*  The  issue, 
therefore,  was  narrowed  mainly  to  the  question  of  pounds,  shillings  and  pence. 
Mr.  Bartholomew  Hoar  opened  for  the  plaintiff ; and  Mr.  Thomas  Quin  for  the 
defendant ; Hon.  George  Ponsonby  summed  up  on  the  same  side,  and  the  case 
was  closed  for  plaintiff  by  John  Philpot  Curran.  All  the  speaking  was  of  a high 
order,  entirely  free  from  coarse  expressions  or  offensive  matter.  The  arguments 
partake  rather  of  the  nature  of  essays  on  moral  ethics  than  speeches  to  a jury  at 
nisi  prius.  \\e  have,  therefore,  concluded  to  give  them  in  full,  a-ud  also  Baron 
Smith’s  able  and  instructive  charge  to  the  jury.  Mr.  Ploar’s  opening  is  certainly 
an  able  effort.  Plis  statement  is  clear,  his  language  choice,  his  style  compact. 
The  striking  parallel  of  the  defendant’s  conduct  with  the  treachery  of  the  Cornish 
pirates,  who  burn  false  lights  on  the  rocky  coast  in  order  to  lure  the  gallant  ship 
to  destruction,  prcscn.s  a rraohic  picture.  Mr.  Hoar  spoke  as  follows: 

May  it  please  the  Court, — Gentlemen  of  the  Jury: — This 
is  the  first  action  of  the  kind  a jury  of  this  county  has  ever  been 
impanelled  to  try;  and,  as  it  is  the  first,  so  I hope  in  Heaven  it 
may  be  the  last.  Many  idle  reports  have  been  circulated,  and  the 
subject  of  this  trial  has  engaged  much  of  public  attention;  but  it  is 
your  duty,  as  I am  sure  it  is  your  wish,  to  discharge  your  minds 

* For  a synopsis  of  the  testimony,  see  post,  page  677. 


IN  MASSY  V.  THE  MARQUIS  OF  IIEADFORT. 


G69 


from  every  idle  rumor,  to  stand  indifferent  between  the  parties,  and 
relying  upon  the  evidence,  and  collecting  information  from  the  wit- 
nesses on  their  oaths,  who  will  be  produced  before  you,  to  found 
your  verdict  upon  facts  well  attested,  and  of  which  you  only  are  the 
constitutional  judges. 

I.  The  narration. — Facts  and  circumstances  of  the 

CASE. 

The  plaintiff,  the  Rev.  Charles  Massy,  is  the  second  son  of  a 
gentleman  of  high  distinction  in  this  county,  who  has  been  more 
than  once  called  to  the  representation  of  it  by  a free  and  honor- 
able election,  and  not  only  so  descended,  but  is  a person  of  liberal 
education;  a member  of  one  of  the  learned  professions  in  the  prime 
of  manhood;  a man,  not  only  of  inoffensive  manners  and  of  inno- 
cent life,  but  a man  whose  virtues  correspond  with  his  situation  in 
society  and  adorn  the  profession  he  has  adopted.  In  1796 
Mr.  Massy  became  attached  to  Miss  Rosslewin.  Mr.  Massy, 
being  a second  son,  and  not  independent  of  the  bounty  of  his 
father,  possessed  then  a living  of  but  ^£300  a year.  Sir  Hugh 
Massy,  his  father,  disapproved  a match  “ which  had  not  fortune  to 
support  the  claim  of  beauty,”  and  had,  therefore,  proposed  one 
with  a young  lady  of  a neighboring  county,  which  he  conceived,  in 
point  of  fortune  and  of  connection,  far  more  eligible,  and  on  that 
occasion  had  offered  to  settle  oh  his  son,  the  plaintiff,  ;^^i,ioo 
a year  in  landed  property,  together  with  the  young  lady’s  fortune; 
but,  declining  the  hand  of  an  amiable  and  accomplished  lady,  re- 
fusing an  ample  and  independent  establishment,  with  the  additional 
enjoyment  of  parental  bounty  and  approbation,  and  foregoing  all 
these  advantages,  Mr.  Massy  proved  the  sincerity  and  purity  of  his 
attachment  by  a generous  sacrifice  of  fortune  to  affection,  and 
married  Miss  Rosslewin  in  March,  1796.  The  happiness  of  the 
young  couple  during  eight  succeeding  years,  not  only  seemed  to  be 
but  really  was  unmixed  and  unabated;  he  loving  with  constant  and 
manly  ardor;  she  with  chaste  and  equal  affection;  and,  during  that 
interval.  Heaven  had  blessed  their  union  with  a boy,  the  bond  and 
cement  of  their  present  happiness,  the  pledge  and  promise  of  future 
multiplied  felicities.  Then  Mr.  and  Mrs  Massy  exhibited  such  an 
example  of  domestic  contentment  and  satisfaction  to  their  neigh- 
bors, their  relatives  and  their  friends,  as  to  convince  them  that  the 
sacrifices  he  had  made  were  not  too  great;  that  her  grateful  and 
affectionate  returns  to  a conduct  so  nobly  liberal  and  disinterested- 


670 


SPEECH  OF  BARTHOLOMEW  HOAR 


ly  affectionate,  were  not  too  little;  guilt  and  treachery  had  not  yet 
made  their  way  into  the  abode  of  peace  and  innocence;  all  was 
quiet,  tranquil  and  happy  till,  to  the  misfortune  of  this  county  and 
couple,  the  Marquis  of  Headfort  made  his  appearance  at  Limerick. 

Mr.  Massy  happened  to  have  had,  some  years  since,  a living  in 
the  county  of  Meath,  where  Lady  Bective,  the  mother  of  the  Mar- 
quis of  Headfort,  was  a principal  parishoner,  and  from  whom,  dur- 
ing his  residence  in  the  parish,  Mr.  Massy  received  much  polite 
and  hospitable  attention.  From  this  circumstance  of  his  acquaint- 
ance with  her,  Mr.  Massy  waited  on  her  son  on  his  arrival  at  Lim- 
erick, invited  him  to  the  house,  and  strained  his  narrow  means  to 
give  the  son  of  Lady  Bective  every  proof  of  his  sense  of  her  former 
attentions  and  politeness;  but,  while  indulging  the  hospitable  spirit 
of  our  county,  little  did  Mr.  Massy  think  he  was  introducing  into 
his  house  the  man  who  could  conceive  the  blackest  and  basest  de- 
signs against  his  peace  and  honor;  that  this  stranger,  so  hospitably 
received  and  so  affectionately  cherished,  was  to  pour  poison  into  his 
peace  and  make  him  a wretch;  for  no  reasonable  man  could  suppose 
that  Lord  Headfort,  at  his  time^  ever  could  disturb  the  peace  of 
any  family,  his  age  (for  he  is  above  fifty),  his  figure,  his  face,  made 
such  a supposition  not  only  improbable,  but  almost  ridiculous;  yet 
so  it  happened  that  this  “hoary  veteran,”  in  whom,  like  ^tna,  the 
snow  above  did  not  quench  the  flames  below,  looked  at  Mrs.  Massy 
and  marked  her  for  ruin.  And  nothing  more  beautiful  could  he 
behold,  and  nothing  upon  whom  it  was  more  unlikely  that  such  a 
venerable  personage  as  his  Lordship  could  have  made  an  improper 
impression. 

2.  How  plaintiff’s  suspicions  were  aroused. 

Lord  Headfort  spent  four  days  at  Summer  Hill,  on  his  first  visit, 
and  was  introduced  by  Mr.  Massy  to  the  gentlemen  of  the  first 
rank  and  consideration  in  the  county,  the  Bishop  of  Limerick, 
brother-in-law  of  Mr.  Massy,  and  every  other  gentleman  and  noble- 
man in  the  neighborhood.  I need  not,  in  this  most  hospitable  part 
of  Ireland,  mention  to  you  the  consequence.  Lord  Headfort  was 
received,  entertained,  and  cherished  by  the  friends  and  relatives  of 
Mr.  Massy.  Whilst  Mr.  Massy  was  endeavoring,  by  every  polite 
and  hospitable  attention  in  his  power,  to  render  his  temporary  stay 
in  this  county  not  unpleasant  to  him,  some  anonymous  letters  first 
created  in  the  breast  of  the  plaintiff — not  suspicion;  but  conveyed 
an  intimation  “ that  the  Marquis  of  Headfort  was  too  attentive  to 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


671 


Mrs.  Massy.”  Too  confident  in  the  virtue  of  his  wife,  too  generous 
to  credit  information  so  conveyed,  and  yet  too  prudent  wholly  to 
overlook  or  disregard  it,  Mr.  Massy  prohibited  his  wife’s  visits  to 
Limerick,  and  this  was  followed  up  by  intimating  to  Lord  Headfort 
that  his  Lordship’s  visits  would  be  dispensed  with  at  Summer  Hill, 
his  (Mr.  Massy’s)  place  of  residence.  Lord  Headfort’s  visits  were 
discontinued.  His  Lordship  promised  not  to  repeat  them. 

3.  Mrs.  Massy’s  exemplary  behavior  quiets  his  fears. 

— Circumstances  of  the  abduction. 

And  yet,  though  Mr.  Massy  took  these  precautions,  he  still  had 
the  utmost  confidence  in  the  virtue  of  his  wife,  and  not  without  ap- 
parent reason,  for  she  still  preserved  the  appearance  of  the  most 
affectionate  attachment  to  him,  and  acquiesced  without  a murmur 
in  what  his  prudence  prescribed.  Her  correct  manners,  her  strict 
attention  to  her  religious  duties,  might  have  imposed  upon  a keener 
penetration  than  her  husband’s.  She  regularly  attended  divine 
service,  took  the  sacrament,  and  has  been  heard  to  reprove  her 
brother  and  brother-in-law  for  want  of  attention  to  these  duties; 
and  in  conversation,  turning  on  the  indiscretions  of  other  women, 
was  often  heard  to  declare:  “that  if  affection  for  her  husband  so 
well  merited,  or  for  her  child,  were  not  sufficient  checks  to  keep 
her  steady  to  her  virtue,  her  sense  of  religious  obligations  would 
alone  have  that  effect.”  The  unaffected  liveliness  and  simplicity 
of  her  manners,  the  decency  of  her  deportment,  her  endearing  at- 
tentions to  him  and  her  child,  left  not  the  shadow  of  suspicion  on 
the  mind  of  Mr.  Massy,  that  she  could,  in  anywise,  forget  her  sex, 
her  situation,  or  her  duty,  much  less  that  she  could  run  into  the 
coarse  toils  spread  for  her  by  Lord  Headfort.  It  will  shock  and 
appal  you,  gentlemen,  to  hear  the  time  and  occasion  which  Lord 
Headfort  selected  for  the  final  accomplishment  of  his  designs  upon 
the  honor  of  this  unfortunate  woman,  and  the  happiness  of  his  host 
and  his  friend.  The  day  was  Sunday;  the  hour,  the  time  of  divine 
service.  Yes,  gentlemen,  on  that  day  and  on  that  hour  set  apart 
for  the  service  of  our  Creator,  whilst  the  reverend  rector  was  bend- 
ing before  the  altar  of  his  God,  invoking  blessings,  not  only  on  his 
flock  there  assembled,  but  on  the  head  of  the  unfeeling  and  profli- 
gate destroyer  of  his  comfort  and  honor.  On  such  a day,  at  such 
an  hour,  upon  such  an  occasion,  did  the  noble  Lord  think  proper  to 
commit  this  honorable  breach  of  hospitable  faith;  this  highminded 
violation  of  the  little  laws  of  your  diminutive  county;  this  contempt 


672 


SPEECH  OF  BARTHOLOMEW  HOAR 


— I would  almost  call  it,  this  defiance  of  the  Almighty  himself.  And 
will  not  you,  gentlemen,  the  sworn  arbitrators  of  this  profanation, 
the  guardians  of  our  laws  and  our  religion,  the  conscientious  minis- 
ters of  divine  and  human  justice,  reward  the  noble  delinquent  ac- 
cordingly? I know  you  will;  and  to  your  just  estimate  of  such  an 
act  I commit  this  noble  act  and  its  most  fioble  actor. 

I have  to  state  what  will  be  proved,  that  on  a Sunday,  at  such 
an  hour.  Lord  Headfort  took  off  Mrs.  Massy  from  her  husband’s 
house  at  Summer  Hill;  they  crossed  the  Shannon  in  a boat,  got 
into  a chaise  in  waiting  for  them  on  the  road,  and  from  thence 
posted  to  Pallas,  eighteen  or  nineteen  miles  only  from  Summer 
Hill.  There  he  and  Mrs.  Massy,  heedless  of  the  misery  and  distrac- 
tion of  her  unhappy  husband,  remained  in  the  same  room  the  whole 
of  Sunday  night.  The  noble  peer  did  not  fly.  No;  he  made  short 
and  easy  stages — not  fearful  of  pursuit,  not  as  a criminal  endeavoring 
to  effect  his  escape,  but  as  a conqueror,  parading  slowly  through  the 
country,  and  quietly  enjoying  the  glory  and  honor  of  his  triumph! 
What  was  his  triumph?  The  distraction  of  the  friend  he  mad- 
dened with  agony!  the  pollution  of  a,  till  then,  spotless  and  inno- 
cent woman!  From  Pallas  his  Lordship  pursued  his  route  to  Clon- 
mel, and  there  rested  a night;  from  thence  to  Waterford,  then  to 
England,  where,  I trust,  he  will  ever  remain,  because  I am  satisfied 
that  no  advantage  to  be  derived  to  the  country,  from  the  most  am- 
ple fortune  expended  here,  could  countervail  the  mischiefs  that 
must  flow  from  the  application  of  enormous  wealth  to  extravagant 
vices,  and  the  example  of  such  prodigal  profligacy  amongst  us.  I 
fear  I detain  you  too  long,  yet  it  is  necessary  to  detail  the  enormity 
of  this  foul  transaction,  “in  itself  most  foul.”  To  you,  then,  I will 
leave  it  to  mark,  by  the  verdict  you  will  give,  your  approbation  or 
disapprobation  of  the  conduct  of  this  noble7?ian.  He  was  not 
young.  If  young,  the  ardor  and  inexperience  of  youth  might  have 
been  some  extenuation  of  this  enormity;  but  many  years  has 
elapsed  since  the  ve?ierable  Peer  could  have  insisted  upon  such  a 
plea.  The  noble  Lord  is,  I am  instructed,  between  fifty  and  sixty 
years  of  age,  and  from  the  life  he  has  led  and  the  pursuits  he  has 
been  engaged  in,  we  must  conclude  his  constitution  not  to  be  that 
of  a very  green  old  age.  At  this  advanced  period  of  life,  the 
slightest  check  of  principle  must  rein  in  and  restrain  the  passions. 

But  if  a sickly  appetite  cannot  be  controlled,  and  must  be  fed 
with  perpetual  supplies  of  dearly  purchased  variety,  let  the  wealth 
he  commands  and  abuses  procure  it,  without  breaking  in  upon  the 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


673 


peace  and  honor  of  respectable  families.  The  noble  Lord  pro- 
ceeded to  the  completion  of  his  diabolical  project,  not  with  the 
rash  precipitancy  of  youth,  but  with  the  cool  and  deliberate  con- 
sideration of  age. 

4.  Defendant’s  crime  compared  to  the  treachery  of 

PIRATE  WRECKERS. A STRIKING  SIMILE. 

The  Cornish  plunderer,  intent  on  the  spoil,  callous  to  every 
touch  of  humanity,  shrouded  in  darkness,  holds  out  false  lights  to 
the  tempest-tost  vessel,  and  lures  her  and  her  pilot  to  that  shore 
upon  which  she  must  be  lost  forever — the  rock  unseen,  the  rufhan 
invisible,  and  nothing  apparent  but  the  treacherous  signal  of  secu- 
rity and  repose.  So,  this  prop  of  the  throne,  this  pillar  of  the  State, 
this  stay  of  religion,  the  ornament  of  the  Peerage,  this  common 
protector  of  the  people’s  privileges  and  of  the  crown’s  prerogatives, 
descends  from  these  high  grounds  of  character  to  muffle  himself  in 
the  gloom  of  his  own  base  and  dark  designs;  to  play  before  the 
eyes  of  the  deluded  wife  and  the  deceived  husband  the  falsest 
lights  of  love  to  the  one,  and  of  friendly  and  hospitable  regards  to 
the  other,  until  she  is  at  length  dashed  upon  that  hard  bosom  where 
her  honor  and  happiness  are  wrecked  and  lost  forever.  The  ag- 
onized husband  beholds  the  ruin  with  those  sensations  of  horror 
which  you  can  better  feel  than  I can  describe.  Her  upon  whom  he 
had  embarked  all  his  hopes  and  all  his  happiness  in  this  life,  the 
treasure  of  all  his  earthly  felicities,  the  rich  fund  of  all  his  hoarded 
joys,  sunk  before  his  eyes  into  an  abyss  of  infamy,  or  if  any  frag- 
ment escape,  escaping  to  solace,  to  gratify,  and  to  enrich  her  vile 
destroyer.  Such,  gentlemen,  is  the  act  upon  which  you  are  to  pass 
your  judgment;  such  is  the  injury  upon  which  you  are  to  set  a 
price,  and  I lament  that  the  moderation  of  the  pleader  has  circum- 
scribed within  such  narrow  limits  the  discretion  you  are  to  exercise 
upon  the  damages.  You  cannot  exceed  the  damages  laid  in  the 
declaration.  I lament,  and  so  I hope  do  you,  that  you  cannot,  for 
the  damages  laid  do  not  exceed  one  year’s  income  of  the  noble 
Lord’s  estates.  The  life  of  the  adulterer  is  in  some  degree  in  the 
power  of  the  injured  husband.  If  the  husband  kill  the  adulterer 
caught  in  the  act,  the  killing  is  not  murder  : what,  according  to  the 
noble  Lord’s  own  estimate,  would  be  the  value  of  the  noble  Lord’s 
life  ? In  mine,  and  perhaps  in  your  estimation,  the  value  of  the 
noble  Lord’s  life  would  not  be  very  high;  but  take  it  according  to 
his  own,  and  it  is  invaluable.  The  ransom  of  his  life  ought  to  be 
43 


674 


SPEECH  OF  BARTHOLOMEW  HOAR 


the  measure,  of  your  damages.  What  can  he  plead  ? Is  it  that  he 
too  has  a wife  and  children  ? Is  it  that  as  a double  adulterer  he 
comes  into  this  court  of  justice  and  interposes  the  innocence  of  his 
family  between  his  crime  and  your  justice?  Are  his  titles  and 
honors,  as  they  are  vulgarly  called,  to  dazzle  your  eyes  and  blind 
you  to  the  demerits  of  his  conduct  ? No,  no.  What  are  titles  con^ 
ferred  by  kings  if  the  souls  of  those  who  wear  them  be  not  ennobled 
by  the  king  of  kings.  These  badges  of  distinction,  these  splendid 
emblems  of  shining  merit;  these  rewards  conferred  by  grateful 
sovereigns  on  eminent  attainments  in  science,  or  achievements  in 
war,  may  be  well  allowed  to  adorn  wisdom  and  virtue,  but  cannot 
make  the  fool  wise,  the  coward  brave,  or  the  knave  honest. 

5.  Grounds  of  the  defense  anticipated  and  discussed. 

There  are  two  grounds  of  defense  upon  which  I hear  that  the 
noble  Lord  means  to  submit  his  case  to  the  jury.  The  connivance 
of  the  husband,  the  notorious  general  misconduct  of  the  wife; 
both,  if  I am  rightly  instructed,  unfounded  in  fact  and  not  to  be 
supported  by  any  credible  testimony.  Witnesses  to  these,  or  to 
any  other  facts,  may  be  procured,  but  the  jury  is  to  determine  on 
their  credit.  But  who  is  the  man  who  will  have  the  hardihood  to 
come  forward  and  tell  you  that  Mr.  Massy,  or  any  gentleman  of  his 
family,  rank,  character,  education  or  profession,  could  stoop  to  a 
conduct  so  uniformly  mean,  so  scandalously  dishonorable;  and  if 
such  a witness  can  be  found,  who  is  the  juror  will  believe  him  ? 
Can  any  gentleman  believe  that  a gentleman  could  be  willfully  in- 
strumental to  his  own  disgrace,  the  promoter  of  his  own  dishonor, 
a pander  to  the  prostitution  of  an  adored  wife,  the  stigmatizer  of 
his  idolized  offspring  ? Such  a tale  (let  the  relator  be  who  he  may) 
is  in  itself  utterly  improbable.  The  proud  mind  of  my  client  can- 
not condescend  to  contradict  it;  but  let  the  tenor  of  his  whole  life, 
his  character  yet  unaspersed  and  unblemished,  his  generous  sacri- 
fices to  this  very  woman  before  her  honor  became  his  honor,  and 
her  character  the  object  of  his  protection,  his  exemplary  conduct 
as  an  husband,  a father,  a pastor  of  our  church,  a member  of  soci- 
ety, give  the  lie  to  a story  which  cannot  be  told  by  any  man  of 
honor,  or  be  believed  by  any  man  of  sense.  It  is  not  impossible, 
however,  gentlemen,  that  the  Marquis  of  Headfort  may  attempt  to 
cover  his  retreat  from  the  pursuit  of  justice  by  some  contrivance 
of  this  kind,  nor  is  it  quite  impossible,  however  improbable,  that 
he  may  find  some  plausible  instrument,  hard  of  forehead  and  flip- 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT.  GT5 

pant  of  tongue,  ready  from  the  motives  which  generally  actuate 
such  instruments,  to  devote  himself  to  the  perilous  service.  If  such 
a witness  should  appear  before  you,  I will  give  you  a clue  to  his 
character,  I will  describe  to  you  what  he  is,  and  I much  mistake  if 
by  these  marks  and  tokens  you  can  fail  to  know  him  if  he  shall  ap- 
pear. He  is  not  like  those  whom  I have  the  honor  to  address,  a 
gentleman  who  has  a character  to  stake  upon  the  testimony  he  will 
give.  He  is  not  a gentleman  whose  intercourse  with  the  world  has 
fashioned  him  to  courtesy  without  wearing  out  and  defacing  those 
sharp,  prominent  features  of  oldfashioned  probity,  undeceiving 
truth,  and  unbending  pride,  which  characterize  the  Irish  gentleman. 

Let  me  now  touch  the  second  ground  of  what  I understand  is  to 
be  the  noble  Lord’s  defense,  the  general  misconduct  of  Mrs.  Massy 
before  her  elopement  with  him.  It  well  becomes  the  Marquis  of 
Headfort  to  cover  with  additional  disgraces  the  unfortunate  victim 
of  his  delusions.  Is  it  that  in  the  struggle  between  his  avarice  and 
his  vanity  the  former  has  conquered,  or  is  it  so  ordered  by  the  wise 
and  just  dispensations  of  Providence  that  the  best  boons  success- 
ful vice  bestows  upon  subdued  chastity  are  private  contempt  and 
public  infamy  ? But  though  the  noble  Marquis  may  not  hesitate  to 
sink  still  lower  and  lower  the  degraded  object  of  his  guilty  passion, 
yet  there  are  other  considerations  which  might  hold  back  from 
such  an  attempt,  a man  not  inaccessible  to  the  feelings  of  human- 
ity. Mr.  Massy  has  a son  still  living.  Why  should  this  innocent 
be  more  involved  than  he  already  is  in  his  mother’s  dishonor? 
Why  should  this  half-orphaned  child,  robbed  of  one  parent  by  the 
noble  Marquis,  become,  by  the  deliberate  act  of  his  and  his  family’s 
enemy,  the  sad  remembrancer  of  the  other,  of  a father’s  doubt  and 
a mother’s  dishonor  ? Is  this  additional  pang  to  be  inflicted  on  the 
lacerated  bosom  ? Is  this  new  wound  to  be  opened  in  a bleeding 
and  exhausted  heart  ? Why  will  the  noble  Marquis  endeavor  to  in- 
fuse this  horrid  suspicion  into  Mr.  Massy’s  mind  that  the  offspring 
of  his  marriage  bed  is  spurious;  that  though  the  father  of  a living 
son,  he  is  perhaps  childless,  his  affections  lavished  upon,  his  name 
borne  by,  his  fortune  destined  for,  perhaps  an  impostor?  This  at- 
tempt the  noble  Marquis  will  make,  I am  told,  to  mitigate  the  in- 
jury and  diminish  the  damages.  If  such  an  endeavor  be  made,  you, 
gentlemen,  will  appreciate  such  an  attempt  according  to  its  real 
worth  and  true  value.  This  attempt  can  only  be  supported  by  such 
a witness  as  I have  already  described  to  you,  and  from  whom  your 
honorable  hearts  will  recoil  with  scorn  and  abhorrence.  We  are 


676 


SPEECH  OF  BARTHOLOMEW  HOAR. 


prepared  to  show  you,  by  the  testimony  of  most  respectable  person- 
ages, that  the  fame  of  this  now  unhappy  woman  had  never  been 
sullied  by  the  slightest  imputation  until  her  connection  with  the 
Marquis  of  Headfort. 

6.  The  rule  of  damages. 

I feel,  gentlemen,  I have  been  honored  with  your  attention  too 
long.  I shall  detain  it  but  a very  little  longer.  In  this  action  the 
plaintiff  is  entitled  either  to  the  largest  or  the  smallest  damages.  If 
connivance  be  proved  to  your  satisfaction,  a single  shilling  would  be 
too  much;  if  not,  I know  not  what  measure  of  damages,  under  all 
the  circumstances  of  the  case,  would  be  too  large.  It  will  be  proved 
to  you  how  he  received  the  first  news  of  her  flight.  The  first  inti- 
mation was  like  the  stroke  of  death.  His  portion  for  several  weeks 
after,  agony  and  distraction.  Happy  would  it  have  been  for  him 
if  death  had  followed  the  shock,  or  madness  relieved  him  from 
misery.  It  now  rests  with  you  to  compensate  the  sufferings  of  this 
deeply  injured  individual.  It  is  with  you  to  determine  whether  the 
penalty  you  inflict  on  lawless  lust  shall  operate  as  a protection  to 
legitimate  happiness;  whether  your  ample  verdict  shall  not,  like  a 
shield,  cover  domestic  peace  and  social  order  from  brutal  insult 
and  dishonest  violation.  If  the  “compunctious  visitings  ” of  con- 
science and  duty  cannot  dissuade  the  black  adulterer  from  his  de- 
signs  upon  the  quiet  of  others,  let  the  example  you  make  drive  him 
from  your  doors,  and  deter  him  from  the  spoil  of  your  dearest  and 
most  invaluable  possessions,  your  happiness  and  your  honor.  And 
may  that  God,  under  whose  eye  and  in  whose  presence  we  act, 
when  his  hand  shall  hold  the  balance  of  divine  justice,  when  those 
transgressions  from  which  the  errors  and  infirmities  of  our  nature 
exempt  no  human  creature,  shall  be  put  into  one  scale,  may  the 
weighty  and  exemplary  verdict  of  this  day  accompany  your  merits 
into  the  other,  and  make  it  preponderate. 


SPEECH  OF  THOMAS  QUIN 

Opening  for  Defendant  in  Massy  v.  The  Marquis  of  Head- 
fort. — Damages  for  Criminal  Conversation. 

AT  ENNIS  ASSIZES,  COUNTY  CLARE,  BEFORE  BARON  SMITH 
AND  A SPECIAL  JURY,  FRIDAY.  JULY  27th,  1804. 


Damages  claimed,  ;^4o,ooo. — Amount  recovered,  ^^lo.ooo. 


Analysis  of  Me.  Quin’s  Speech. 


The  rule  of  law  in  relation  to  the  injury 
and  claim  in  this  class  of  actions. 

The  defense  of  connivance  groes  to  the 
foundation  of  the  action. — Connivance 
may  be  actual  or  constructive. 


3.  Character  and  conduct  of  Mrs.  Massy. 

4.  The  verdict  must  not  be  the  result  of 

vengeance,  but  of  reason  and  justice. 

5.  A good  wife  likened  to  a jewel,  to  be 

worn  next  the  heart. 


In  view  of  the  fact  that  the  speeches  on  both  sides  are  published,  we  shall 
give  a synopsis  of  the  evidence  in  the  case,  which  was  very  brief.*  But  six  wit- 
nesses were  called,  four  for  plaintiff,  two  for  defendant.  The  Rev.  Dr.  Parker 
proved  the  marriage;  Mr.  Stackpole  stated,  that  if  plaintiff  had  married  according 
to  the  wishes  of  his  father,  he  would  have  received  a large  fortune.  His  cross- 
examination  elicited  the  fact  that  plaintiff’s  brother  had  separated  from  his  wife, 
and  was  living  with  a Mrs.  Harvey  ; the  defendant’s  object  being  to  show  that 
plaintiff,  by  allowing  his  wife  to  visit  at  his  brother’s,  was  careless  of  her  moral 
character.  Patrick  Dunn  proved  the  elopement,  and  Jane  Apjohn,  a chamber- 
maid, swore  that  defendant  and  Mrs.  Massy  occupied  the  same  room  that  night 
at  the  inn  where  she  was  employed.  Colonel  Pepper  was  called  by  the  defend- 
ant, and  testified  that  he  had  often  seen  the  Marquis  pay  marked  attention  to  Mrs. 
Massy,  who  seemed  flattered  thereby.  He  was  corroborated  by  George  E.  Bruce, 
who  testified  also  that  he  had  seen  defendant  at  the  races  with  Mrs.  Massy;  that 
about  six  weeks  before  the  elopement,  he  noticed  she  was  extravagantly  dressed, 
and  wore  expensive  jewelry  and  ornaments;  that  on  one  occasion,  defendant 
accompanied  her  from  Limerick  to  Summer  Hill  in  his  carriage  tete-d-tete.  On 
his  cross-examination  he  testified  that  Mrs.  Harvey,  the  lady  who  lived  with 
plaintiff’s  brother,  was  a gentlewoman  of  refined  manners,  and  very  fond  of  child- 
ren. Mr.  Curran,  who  cross-examined,  put  the  following  question  to  the  witness: 
“ Do  you  believe  on  your  oath,  as  a man  of  honor,  and  in  the  presence  of  your 
country  and  your  God,  that  plaintiff  connived  at  the  conduct  of  his  wife  ? ” He 
answered:  “ I believe  not.  I am  sure  he  was  incapable  of  it.  His  fault  was 
more  of  the  head  than  of  the  heart.” 

Mr.  Quin’s  opening  was  very  adroit.  He  pursued  the  same  line  of  argu- 
ment afterwards  taken  by  his  associate,  Mr.  Ponsonby,  and  without  attempting 

* For  a statement  of  the  facts  in  the  case,  see  ante^  pages  667,  669. 

[G77J 


678 


SPEECH  OF  THOxNTAS  QHIN- 


to  justify  defendant’s  conduct,  claimed  that  the  burden  was  on  the  husband  to 
show  that  his  conduct  was  exemplary  in  all  respects,  and  that  if  he  was  guilty  of 
any  moral  delinquency,  it  was  pro  tanto,  in  proportion  to  its  flagrancy,  a bar  to 
his  recovery.  He  said  : 

May  it  please  the  Court, — Gentlemen  of  the  Jury : — It  is  the 
particular  duty  of  my  situation  to  lay  before  you  the  circumstances 
of  the  defendant’s  case  ; submitting  it  on  his  behalf  to  your  investi- 
gation, with  a perfect  confidence  of  your  discharging  the  import- 
ant duty  devolved  upon  you  with  all  that  justice  and  fidelity  which 
maybe  expected  from  the  goodness  of  your  understandings  and  the 
integrity  of  your  hearts. 

I.  The  rule  of  law  in  relation  to  the  injury  and  claim 

IN  THIS  CLASS  OF  ACTIONS. 

Cases  of  this  sort  impose  painful  tasks  upon  the  counsel  for  the 
respective  parties.  They  will  not  bear  much  ceremony,  no  polite 
forbearance,  no  punctilious  restraint  can  reasonably  be  expected  ; 
of  this  you  have  had  tolerable  evidence  already.  The  husband 
who  brings  his  action  as  such,  to  recover  compensation  for  an  in- 
jury offered  to  the  most  sacred  relation  in  society,  does  thereby  put 
his  character  and  conduct,  as  a husband,  directly  at  issue,  and  if 
he  expects  to  succeed,  must  show  that  he  fulfilled  and  discharged 
the  duties  springing  from  that  relation,  because  it  is  the  violation 
of  it  which  constitutes  at  once  the  injury  and  the  claim.  We  can- 
not differ  as  to  the  principle  and  foundation  of  this  action;  it  arises 
out  of  the  necessary  politic  provisions  of  society.  It  is  bottomed 
on  the  finest  and  purest  affections  of  the  human  heart.  What  man 
is  there  possessed  of  rationality  and  feeling,  what  husband  who 
deserves  the  name,  that  can  resist  to  sympathize  with,  and  is  not 
impatient  to  redress  the  sufferings  of  a person  deprived,  without 
default  of  his,  of  that  most  inestimable  of  all  human  treasures,  an 
amiable  and  virtuous  wife  ? Here  we  agree  ; but  in  proportion  as 
such  feelings  impel  us  to  remunerate  such  an  injury,  and  vindicate 
the  wrongs  of  such  a sufferer,  so  do  we  turn  with  disgust  and  rep- 
robation from  an  attempt  to  pervert  the  sacred  nature  of  this  rem- 
edy from  its  just  and  honest  purpose,  from  the  assistance  of  the 
pure,  genuine  and  legitimate  objects  of  its  care,  to  lavish  its  re- 
dress upon  factitious  injury,  and  make  that  jury  who  should  be  the 
instruments  of  its  salutary  efficacy  subservient  to  the  scheme  of 
hypocrisy  and  imposition.  If  the  husband,  who  by  his  deportment 
is  entitled  to  the  name,  meets  such  an  injury,  and  sustains  such  a 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


679 


loss,  compensate  him  (if  he  can  be  compensated)  to  the  utmost 
limit  which  the  case  may  bear.  You,  at  the  same  time,  requite  the 
most  poignant  abuse  which  man  can  suffer,  and  give  a wholesome 
lesson  to  society.  But  if  all  who  call  themselves  husbands  shall  ap- 
peal successfully  to  this  tribunal,  and  under  pretense  of  injury  shall 
clamor  for  money,  to  assuage  their  feelings  by  supplying  their 
wants,  you,  in  defiance  of  reason  and  of  feelings,  confound  all 
claimants,  you  confer  what  should  remunerate  the  injured  on  him 
who  has  received  no  injury,  and  equalize  those  persons  who  should 
stand,  in  your  estimation,  as  separate  as  innocence  and  guilt ; you 
sanction,  nay,  encourage  an  adulterous  traffic  : the  matrimonial 
bond  will  become  assailed  by  the  most  licentious,  dissolute,  and 
sordid  motives;  lust,  avarice  and  indigence  will  institute  treaties  on 
the  subject : husbands  will  take  their  wives  to  market,  and  instead 
of  restraining,  you  will  promote  the  vice. 

2.  The  defense  of  connivance  goes  to  the  foundation  of 

THE  ACTION. CONNIVANCE  MAY  BE  ACTUAL  OR 

CONSTRUCTIVE. 

The  case  of  the  defendant  is  not,  because  it  cannot  be,  a case 
of  justification.  The  fact  stands  admitted,  and  however  it  may  be 
accounted  for,  it  cannot  be  morally  defended  under  any  circum- 
stances. The  advocates  of  the  defendant  would  not  outrage  moral 
decency,  or  affront  the  feelings  and  understanding  of  a jury.  But 
the  principle  of  the  action  should  be  exactly  understood.  The  de- 
fendant is  not  here  upon  his  trial  for  the  commission  of  an  offense 
against  society  ; you  are  not  placed  there  on  this  occasion  as  moral 
censors  of  the  actions  of  men  ; public  duties  should  not  be  con- 
founded ; the  defendant  is  not  the  subject  of  criminal  prosecution  ; 
but  the  plaintiff  seeks  compensation  for  a specific  injury,  and  must 
show  he  has  sustained  it.  He  says  he  has  lost,  by  means  of  the  de- 
fendant, the  comforts  and  enjoyments  of  conjugal  domestic  life. 
The  law  upon  the  subject  is  simple  and  well  settled.  If  the  hus- 
band, in  the  emphatical  language  of  the  law,  connives  at  his  own 
dishonor  (which  I would  not  be  understood  to  say  he  has  done  in 
the  present  case),  it  goes  to  the  foundation  of  the  action,  and  he  is 
not  entitled  to  a verdict.  That  must,  of  course,  be  collected  from 
the  circumstances.  Neglect  and  inattention  may  be  so  gross  as  to 
amount  to  satisfactory  evidence  of  connivance,  or  may  disclose 
such  demerits  on  the  plaintiff’s  part  as  should  mitigate  the  damages 
to  nothing. 


680 


SPEECH  OF  THOMAS  QUIN 


3.  Character  and  conduct  of  Mrs.  Massy. 

The  case  before  you  is  of  the  latter  class,  and  as  such  we  put  it 
to  you.  Let  me  advert  to  the  circumstances  under  which  the 
plaintiff  married  Miss  Rosslewin.  She  was  young,  volatile  and 
giddy,  beautiful  and  vain,  of  an  uncommon  levity  (the  witness 
called  it  gayety)  of  disposition,  and  fond  of  dress  beyond  even  the 
ordinary  passion  of  her  sex.  His  manly  advantages  and  liberal 
education  enabled  him,  and  the  prudential  duties  of  his  station  en- 
joined him,  to  observe  and  guide  her.  Lest  uncontrolled  by  the 
presence  and  unassisted  by  the  instruction  of  a husband,  unre- 
strained by  a marital  admonition,  unattended,  unadvised,  unchecked 
and  unreproved  by  him  who  was  the  natural  guardian  of  her  morals 
and  his  own  honor,  indulged  in  profusion  to  which  his  income  was 
inadequate,  she  engaged  in  a career  of  dissipation,  and  plunged 
into  that  vicious  vortex  which  hurried  her  to  the  depth  of  her  own 
infamy  and  his  disgrace.  Her  life  was  passed  and  occupied  ; the 
plaintiff  suffered  it  to  pass  amidst  those  scenes  of  fashionable  en- 
joyment wherein  women,  unfortified  by  principle  and  unaided  by 
advice,  become  exposed  to  the  most  dangerous  impressions  ; her 
improving  beauty  solicited  and  provoked  the  admiration  of  our  sex, 
and  her  situation  encouraged  their  approaches.  Devoted  to  his 
own  amusements,  her  natural  protector  wandered  from  her  and  left 
“ her  fair  side  all  unguarded  she  received  and  permitted,  with 
undisguised  delight,  assiduities  too  observable  to  pass  unnoticed,  or 
escape  the  effect  of  public  observation.  Her  dress  became  magnif- 
icent and  costly.  She  passed  months  at  the  houses  of  single  gentle- 
men, unaccompanied  or  unattended,  save  occasionally  by  the  plaint- 
iff ; and,  at  Galway  in  particular,  where  she  went  on  an  excursion, 
the  attentions  of  a military  man  of  rank  became  so  remarkable,  and 
her  encouragement  so  glaring,  that  her  own  connections  found  it 
necessary  to  snatch  her  from  the  spot,  as  from  impending  infamy, 
and  hurried  her  to  Limerick. 

Thus  it  will  appear  that  this  unfortunate  young  lady,  who  has 
been  poetically  represented  by  the  plaintiff’s  counsel  as  a paragon 
of  domestic  fidelity  and  female  purity  until  the  spoiler  came,  and 
whose  piety  has  composed  one  topic  of  the  panegyric,  had  never 
beheld  the  defendant,  or  he  her,  until  the  breath  of  public  remark 
had  tainted,  if  not  blasted,  her  reputation.  Such  as  I have  described 
her,  so  did  the  defendant  find  her : engaged  in  public  fashionable 
life,  immersed  in  pleasures,  and  practiced  in  those  aits  which  too 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


C81 


often  render  a lovely  married  woman  more  seducer  than  seduced. 
He  met  her  first  at  the  races  of  Limerick,  then  at  the  races  of  Mal- 
low, unattended  by  the  plaintiff  at  either  place.  The  attentions  of 
a man  of  such  superior  rank  were  too  flattering  to  be  declined ; 
they  passed  under  public  observation  at  all  places  of  public  or  pri- 
vate fashionable  resort ; the  eyes  of  all  companies  were  fixed  upon 
them,  and  her  reception  of  them,  being  too  obvious  to  pass  un- 
marked, became  the  subject  of  general  conversation.  She  avowed 
to  her  relations  her  attachment  to  the  defendant,  and  her  deter- 
mination to  go  off  with  him.  Are  you  to  presume  that  all  this  took 
place  unknown  to  her  husband  ? Was  he,  though  on  the  spot,  alone 
deceived  ? It  is  said  the  defendant’s  propensity  to  gallantry  is  no- 
torious; was  that  unknown  to  the  plaintiff  ? It  would  be  monstrous 
indeed,  under  such  circumstances,  to  presume  him  ignorant;  but  he 
should  have  known  her  conduct,  because  it  was  his  duty  to  observe 
and  govern  it.  That  such  was  her  demeanor  will  appear  in  proof. 
AVe  have  heard  and  read  of  various  husbands — the  tender,  the  care- 
less, the  mysterious,  the  suspicious — but  the  plaintiff  adds  a new 
one  to  the  drama,  and  gives  the  unsuspecting  or  the  sightless  hus- 
band ! Here  was  no  breach  of  friendship,  no  confidence  abused  ; 
the  intercourse  went  on  in  public,  and  it  was  not  until  after  a 
familiar  acquaintance  with  the  wife,  well  known  to  the  plaintiff,  that 
he  and  the  defendant  became  known  to  each  other. 

4.  The  verdict  must  not  be  the  result  of  vengeance,  but 

OF  REASON  AND  JUSTICE. 

While  these  proceedings  were  in  progress  to  their  consumma- 
tion, the  plaintiff,  who  had  resigned  Mrs.  Massy  to  her  own  good 
guidance,  passed  his  time  at  the  house  of  his  brother,  enjoying  the 
highly  moral  intercourse  of  him  and  Mrs.  Harvey.  What ! Gentle- 
men of  the  Jury!  the  man  who  claims  against  another  for 

a breach  of  the  most  sacred  moral  relations  in  society — himself  of 
a sacred  and  highly  moral  function — associates  with  the  mistress  of 
his  brother;  sanctions,  by  his  presence,  the  expulsion  of  an  amiable 
and  deserving  woman,  cast  into  exile  from  that  mansion  which  she 
could  adorn,  and  witnesses  her  rights  supplanted  and  her  place 
usurped  by  the  dominion  of  a concubine  ! And  if  these  be  the 
plaintiffs  claims  to  your  regard,  indulge  him  to  the  extent  of  his 
demand  ; but  before  you  do  so,  you  will  expect  that  he  shall  show 
himself  entitled  from  his  own  deportment,  for  your  verdict  will  be 
the  result  of  reason  and  of  justice,  and  not,  as  has  been  said,  of 


682 


SPEECH  OF  THOMAS  QUIN. 


vengeance..  What  will  you  be  disposed  to  feel  when  you  shall  hear 
that  she  dined  repeatedly  at  the  house  of  the  defendant,  alone,  un- 
accompanied and  uncountenanced  by  any  other  female,  and  sur- 
rounded by  his  officers?  To  what  can  you  ascribe  such  an  un- 
blushing breach  of  delicacy  ? What  inference  do  you  draw  from 
that  ? Why,  that  her  principles  were  sapped  before,  and  that  it  is 
as  idle,  as  unjust  to  charge  the  defendant  with  her  ruin!  What  will 
you  think  when  I inform  you  that  after,  in  consequence  of  such 
misconduct,  her  relations  shut  their  doors  against  her,  the  husband 
opened  his  ? She  returned  from  Limerick  to  Summer  Hill,  the 
plaintiff’s  house,  accompanied  by  the  defendant,,  and  no  other  per- 
son, in  the  defendant’s  carriage,  and  was  received  by  her  unsuspect- 
ing husband.  What  did  he  do  ? Did  he  express  a natural  indigna- 
tion ? Did  he  remonstrate?  Did  he  reprove?  No,  gentlemen  of 
the  jury  ! He  retired  to  Dian’s  temple  at  Donass,  and,  the  key  of 
the  cellar  being  left  behind,  nothing  remained  to  impede  the  indub 
gences  of  love  and  wine  ; from  thence  till  he  went  off  the  defend- 
ant passed  whole  days  at  Summer  Hill,  uninterrupted  by  the  plaint- 
iff. Allow  me  to  ask,  where  was  Mr.  Massy,  and  how  was  he  occu- 
pied while  his  wife  was  so  conducting  herself?  Was  he  engaged 
away  in  the  service  of  his  king  and  country  ? Was  he  laudably  em- 
ployed in  the  industrious  task  of  furnishing  the  comforts  and  ele- 
gancies of  life  for  the  partner  of  his  heart  and  the  dear  pledges  of 
their  love?  No.  < 

5.  A GOOD  WIFE  LIKENED  TO  A JEWEL,  TO  BE  WORN  NEXT 
THE  HEART. 

The  man  possessing  a jewel  of  inestimable  worth,  who  wished, 
in  truth,  to  guard  its  value  and  preserve  its  lustre,  would  wer.r  it 
next  the  heart ; but  the  plaintiff  threw  this  gaudy^  worthless  trinket 
here  and  there,  to  be  picked  up  by  every  casual  finder,  or  let  it 
hang  so  loosely  from  his  person  as  to  invite  and,  ready  as  it  were, 
to  bless  the  silly  hand  which,  tempted  by  its  glitter,  might  feel  dis- 
posed to  rid  him  of  the  contemptible  embarrassment,  and  snip  it 
from  his  side.  It  has  been  lost,  and  you  are  called  upon  to  esti- 
mate the  injury  and  to  reprize  the  loss.  You  will  reflect  how  far  it 
was  worth  the  keeping  ; you  will  consider  what  pains  he  took  to 
guard  it ; you  will  appreciate  the  value  of  the  article,  and  then  de- 
termine upon  what  grounds,  and  to  what  extent,  the  plaintiff  merits 
the  interposition  of  a jury. 


SPEECH  OF  Rt.  Hon.  GEORGE  PONSONBY, 


Closing  for  Defendant  in  Massy  v.  The  Marquis  of  Head- 
fort. — Damages  for  Criminal  Conversation. 

AT  ENNIS  ASSIZES,  COUNTY  CLARE,  BEFORE  BARON  SMITH 
AND  A SPECIAL  JURY,  FRIDAY, -JULY  27th,  1804. 


Damages  claimed,  ;^4o,ooo. — Amount  recovered,  ^10,000, 


Analysis  of  Mr.  Ponsonby’s  Speech. 


1.  Duty  of  the  jury, — Varied  character  and 

nature  of  the  defenses  to  the  action. 

2.  Observations  as  to  the  plaintiff’s  deport- 

ment, and  its  influence  upon  the  wife. 

3.  If  plaintiflF’s  conduct  contributed  to  his 

misfortune,  he  cannot  be  rewarded 
for  it. 


4.  Vindictive  damages  not  recoverable.— 

The  damages  must  be  proportionate  to 
the  injury  and  the  conduct  of  the  par- 
ties. 

5.  While  the  defendant’s  acts  cannot  be  jus- 

tified, the  plaintiff’s  conduct  is  not  free 
from  blame. 


The  Right  Honorable  George  Ponsonby,  at  the  time  this  speech  was  deliv- 
ered, stood  at  the  head  of  his  profession  in  Ireland,  and  it  is  said  that  he  derived 
from  his  practice  an  income  of  j(^6,ooo  a year.  He  possessed  landed  estates, 
was  knight  of  the  shire  of  Wicklow,  and  allied  to  several  noble  families  both  in 
England  and  Ireland.  He  succeeded  Lord  Redesdale,  in  1806,  to  the  ofHce  of 
Chancellor,  and  received  the  unanimous  congratulation  of  the  Bar  on  his  ap- 
pointment to  the  seals.  Upon  his  retirement  from  office,  his  merits  were  recog- 
nized, and  the  high  appreciation  in  which  his  integrity,  diligence  and  talents  were 
held,  and  the  deep  regret  felt  on  the  occasion,  were  expressed  at  the  time  by 
Mr.  Plunket,  in  an  address  in  behalf  of  his  professional  brethren.  In  the  debate 
in  the  Commons,  regarding  his  pension.  Lord  Howick  remarked,  that  a more 
upright  and  efficient  judge  never  graced  the  Chancery  bench.  He  earned  a rep- 
utation as  an  honest,  upright  official,  and  no  incumbent  rendered  more  general 
satisfaction. 

His  address  on  the  present  occasion  is  characteristic  of  the  man.  It  con- 
tains no  attempt  at  ornament.  No  effort  is  made  to  justify  his  client’s  crime. 
It  is  a frank,  calm  statement,  containing  many  shrewd  and  practical  observations, 
bearing  directly  upon  the  legal  aspect  of  the  case,  based  upon  the  fixed  and 
settled  principles  of  the  law.  Through  it  all  there  is  a vein  of  candor,  which 
always  goes  far  towards  allaying  the  prejudices,  which  conduct  like  that  of  the 
defendant  invariably  excites.  If  it  is  said  that,  notwithstanding  this  effort,  the 
damages  were  great,  it  should  be  remembered  that  the  defense  was  mainly  tech- 

[688] 


CM 


SPEECH  OF  Ft.  IIon.  GEORGE  PONSONBY' 


nical,  and  the  jury  might  have  given  four  times  as  much.  At  the  close  of  the 
testimony  Mr.  Ponsonby  said  : 

May  it  please  the  Court  : — It  is  my  duty,  gentlemen  of  the 
jury,  as  counsel  for  the  defendant,  to  trouble  you  with  a few  obser- 
vations on  the  whole  of  the  evidence  that  has  been  laid  before  you.’ 
You  will  please  to  observe,  that  this  action  is  brought  to  recover 
compensation,  in  money,  for  the  injury  sustained  by  the  plaintiff. 
That  injury,  only,  is  the  foundation  of  this  action  ; and,  therefore, 
what  you  have  heard  of  juries  giving  damages  by  way  of  example, 
in  order  to  deter  others  from  the  commission  of  a like  offense,  of 
setting  themselves  up  as  censors,  is  perfectly  irrelevant  to  the  case 
before  you.  It  is  the  usual  practice  of  counsel  to  have  recourse  to 
this  artifice,  because  they  know  well,  should  they  succeed  in  impos- 
ing such  a principle  on  a jury,  there  is  no  redress  for  the  defend- 
ant if  the  damages  should  be  excessive.  In  other  cases  such  excess 
may  be  rectified,  but  in  this  never  can  ; and  therefore,  from  the 
consequence  of  inflamed  passions,  there  is  no  relief  to  be  had,  and 
this  should  be  a peculiar  reason  with  a jury  to  reflect  most  maturely 
in  apportioning  damages,  because  should  they  happen  to  be  mis- 
taken, their  mistakes  can  never  be  rectified. 

I.  Duty  of  the  jury. — Varied  character  and  nature  of 

THE  DEFENSES  TO  THE  ACTION. 

In  this  action  the  law  is  plain  and  simple.  The  plaintiff  in  it 
complains  that  the  defendant  deprived  him  of  the  comfort  and  so- 
ciety of  his  wife,  and  the  business  for  a jury  is,  on  their  oaths,  to 
inquire  what  comfort  has  been  lost,  or  injuries  sustained  by  the 
plaintiff,  and  whether  such  have  been  brought  on  by  his  own  mis- 
conduct. This  must  be  the  rule  to  regulate  the  jury. 

The  degrees  of  defense  to  the  action  are  various.  A defend- 
ant may  show  the  plaintiff  is  not  entitled  to  any  damages,  because, 
if  any  injury  has  been  sustained,  it  was  occasioned  by  his  default, 
in  conniving  at  his  own  disgrace.  If  such  a defense  should  be 
proved,  the  plaintiff  must  fail  altogether;  but  that  is  not  the  de- 
fense meant  to  be  set  up  here.  There  are  other  degrees  of  defense; 
the  husband  is,  not  only  in  fact,  but  is  considered  by  the  law,  the 
guardian  and  protector  of  his  wife;  but  if,  instead  of  so  protecting 
her,  he  puts  her  in  a situation  to  provoke  temptation,  he  is  not  en- 
titled to  such  damages  as  he  might  otherwise  have  been.  The  de- 
fense I am  instructed  to  insist  upon  goes  not  to  the  right  of 

’ For  the  facts  of  the  case,  and  the  evidence,  see  pages  667,  677,  679. 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


685 


the  action,  but  is  irresistible  in  mitigation  of  the  damages.  I do 
not  accuse  plaintiff  of  connivance  at  the  misconduct  of  his  wife, 
but  I do  insist,  it  must  be  inferred  from  the  evidence  that  he  is  not 
entitled  to  damages  so  great  as  his  counsel  would  seem  to  require. 
If  a woman  has  long  lived  with  her  husband  in  affection,  and  dis- 
charging, as  became  her,  the  duties  of  her  situation,  and  is  seduced, 
the  jury  ought  to  compensate  him  most  amply.  If  a long  supposed 
friendship  is  perverted  to  the  seduction  of  such  a wife,  the  seducer 
ought  to  be  punished — the  jury  ought  to  be  liberal  in  compensa- 
tion. It  would  be  well  if  society  were  so  perfect  that  there  could 
be  no  danger  of  such  an  offense.  The  truth  is,  men  are  more  in 
fault  than  women.  Women  are,  in  all  countries,  regulated  by  the 
conduct  of  men,  and  if  men  will  talk  with  levity;  if  they  will  talk 
lightly  of  women  who  have  been  guilty;  if  those  who  are  guilty  are 
received  into  society;  it  is  but  natural  their  own  wives  should  be 
induced  to  act  the  same  part  those  guilty  women  have  acted.  It  is 
the  husband’s  own  conduct  with  regard  to  other  women  ; his  con- 
duct in  society  in  general,  in  deportment,  in  conversation,  that  can 
entitle  him  to  damages  in  an  action  of  this  sort.  It  is  painful  to 
an  advocate  to  speak  of  a man  in  the  same  society  with  himself 
with  severity,  but  it  is  often  his  duty  to  do  so. 

2.  Observations  as  to  the  plaintiff's  deportment,  and  its 

INFLUENCE  UPON  THE  WIFE. 

What  has  been  the  conduct  of  this  plaintiff’s  family?  To  be 
sure  it  has  been  endeavored  to  prove,  that  the  lady  was  very  relig- 
ious; that  she  remonstrated  at  the  conduct  of  her  brother-in-law; 
that  she  was  fond  of  Sunday  devotion;  but  was  there  not  in  such 
devotion  as  much  affectation  as  there  was  religion  ! There  was  in 
the  plaintiff’s  brother  so  much  of  immorality,  that  even  the  plaintiff 
was  prevailed  upon  to  remonstrate  with  him.  What  time  more  fit 
for  such  remonstrance  than  his  dinner  visits  ! No  doubt,  the  way 
of  life  of  his  brother  was  extremely  disagreeable  to  the  plaintiff, 
and  therefore  he  frequently  visited  him  for  the  purpose  of  affecting 
a reform  in  his  religious  principles  and  habits.  But,  admitting  the 
fact  to  be  so,  if  the  plaintiff’s  wife  saw  the  frequency  of  those 
visits,  she  might  reasonably  enough  consider  it  strange  in  him  to 
visit  a house  whose  legitimate  owner  was  expelled,  in  order  to  make 
way  for  a woman,  a kept  mistress  of  her  husband,  and,  therefore, 
the  plaintiff’s  wife  might  consider  it  venial  in  herself  to  indulge  a 
little  in  the  same  guilt.  Will  you  then  say,  gentlemen  of  the  jury, 


C86 


SPEECH  OF  Rt.  HoxV.  GEORGE  PONSONBY 


that  the  plaintiff  has  not  been  at  least  indiscreet  to  a very  great 
degree;  and  that  connubial  honor  and  domestic  peace  were  not  so 
highly  valued  by  him  as  his  counsel  would  fain  persuade  you  they 
were. 

You  will  consider,  gentlemen,  whether,  as  a minister  of  religion, 
he  should  not  have  forborne  to  associate  with  a relative  who  had 
thus  set  at  defiance  every  moral  and  social  duty,  and  by  the  sever- 
ity of  his  censure  prove  he  could  not  pardon  such  an  offense.  But, 
instead  of  that,  has  he  not  sanctioned  by  his  conduct  the  acts  of 
another  man,  and  now  complains  of  the  very  same  when  done  by 
the  Marquis  of  Headfort  ? 

Is  has  been  said  that  the  defendant  was  a man  of  very  notorious 
gallantry,  regardless  of  the  ties  which  bind  society,  and  trampling 
under  foot  those  bonds  that  secure  the  happiness  and  comfort  of 
families.  How  often  he  has  sinned  in  this  respect  I know  not;  but 
I would  venture  to  say,  this  is  the  first  action  of  this  sort  that  ever 
was  brought  against  him.  But  even  admitting  the  fact  to  be  as 
charged  against  the  defendant,  was  it  not  notice  to  the  husband  to 
regard,  with  a more  watchful  eye,  the  connection  he  saw  increasing 
between  his  wife  and  Lord  Headfort  ? Why  did  he  allow  any  in- 
timacy at  all  to  subsist  under  such  circumstances  ? Why  allow  his 
wife  to  dine  with  him  ? Why  allow  her  to  visit  him,  when  his  ac- 
tions were  so  pointed  ? Was  it  not  the  height  of  indiscretion  in 
plaintiff  to  allow  his  wife  to  continue  this  intimacy — an  intimacy 
that  could  not  proceed  from  any  friendship  between  the  plaintiff 
and  defendant,  for  none  such  subsisted?  To  what  account,  then, 
was  he  to  place  those  attentions  to  his  wife  ? Was  it  not  the  de- 
fendant’s regard  for  her,  and  not  for  plaintiff  ? The  history  of  the 
world  unfortunately  affords  many  instances  of  the  violation  of 
friendships  the  most  sacred,  and  of  their  perversion  to  purposes  the 
most  abominable.  But  here  no  previous  friendship  existed.  Suffi- 
cient occurred  to  awaken  the  attention  of  plaintiff  when  those  un- 
usual tendernesses  were  shown  by  the  defendant  to  his  wife. 

It  has  been  said,  to  be  sure,  that  his  confidence  in  her  honor 
and  principles  were  even  so  great  as  not  to  allow  him  to  suspect 
her.  Why,  it  reminds  me  of  one  of  the  plays  of  Congreve,  where  a 
lady  laments  the  violence  of  her  passion  to  her  confidant.  The 
confidant  says  : “Ah,  you  will  never  yield  ; your  honor,  your  in* 
tegrity  will  support  you.”  The  lady  replies:  “ Ah,  me,  what  is /«- 
tegrity  to  opportunity ; ” and,  therefore,  if  a husband  allows  a parti- 
ality for  his  wife  to  continue  without  interruption,  he  contributes  to 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


687 


his  own  misfortune ; most  particularly  if  the  suitor  be  a man  of  the 
character  and  conduct  this  defendant  has  been  said  to  be.  What 
can  it  be  but  the  grossest  folly  in  the  husband  not  to  discounte- 
nance his  advances  altogether  ? If  anything  detrimental  to  him  fol- 
lows from  such  neglect,  who  has  he  to  blame  but  himself  ? Is  he 
equally  entitled  to  damages  with  the  husband  who  would,  instead 
of  winking  at  the  imprudencies  of  his  wife,  have  removed  her  alto- 
gether from  the  neighborhood  of  her  gallant,  or  at  least  have  for- 
bidden her  a longer  continuance  of -his  acquaintance  ? To  talk, 
therefore,  of  the  kindness  of  this  husband  ; of  his  unwillingness  to 
open  his  eyes  to  the  conduct  of  his  wife,  is  but  idle  declamation  ; 
he  has  nobody  to  blame  but  himself. 

3.  If  plaintiff’s  conduct  contributed  to  his  misfortune, 

HE  CANNOT  BE  REWARDED  FOR  IT. 

There  are  other  considerations,  gentlemen  of  the  jury,  of  great 
moment,  necessary  for  your  deliberation.  I mean  the  actual  loss 
the  husband  has  sustained  independent  of  what  is  called  the  loss  of 
honor.  Was  not  her  conduct  such  as  ought  to  make  every  prudent 
husband  watchful  ? Was  she  not  the  subject  of  public  animadver- 
sion ? And,  if  he  has  not  discharged  his  duty,  ought  he  to  get  the 
compensation  of  a husband  the  most  virtuous  ? He  comes  for 
compensation  for  the  loss  he  has  sustained  in  the  society  of  his 
wife  ; but  if  she  would  make  the  same  mistake  with  any  other  per- 
son, this  defendant  ought  not  to  be  punished  beyond  the  propor- 
tion of  his  offense.  There  is  no  man  so  rude  or  dull  as  not  to  un- 
derstand, that  if  the  approaches  of  a stranger  be  well  received  by  a 
married  woman  the  husband  cannot  lose  much  by  the  loss  of  her 
society.  The  plaintiff  here  lays  his  damages  at  ;^4o,ooo — a sum 
never  heard  of  even  in  the  days  of  Lord  Kenyon,  a judge  remark- 
able for  the  severity  of  his  principles.  The  truth  is,  gentlemen  of 
the  jury,  no  woman  capable  of  conduct  such  as  plaintiff’s  wife 
has  been  guilty  of,  could  be  worth  ^£’40,000.  So  strange  was  her 
conduct,  and  so  negligent  was  her  husband,  that  one  would  think 
it  would  be  almost  reasonable  to  expect  he  should  have  told  the 
defendant  that  he  valued  his  wife  at  ;^4o,ooo.  One  begins  to  think 
it  was  not  fair  in  the  plaintiff  to  allow  the  address  of  my  Lord 
Headfort  to  his  wife,  without  giving  him  some  notice  that  he  valued 
her  so  high.  Had  he  done  so,  are  you  sure,  gentlemen,  that  the 
defendant  would  not  have  withdrawn  his  assiduities  ? And  this  is 
the  only  want  of  candor  I impute  to  the  plaintiff.  Admitting  that 


688 


SrEECII  OF  Et.  IIon.  geoege  poxsoxby 


defendant’s  object  was  the  reputation  of  gallantry,  and  that  plaintiff 
knew  that  was  the  fact,  and  encouraged  it,  and  wished  to  make  the 
defendant  pay  for  it,  he  ought,  at  least,  to  have  told  the  defendant 
he  expected  ^^40,000  for  his  indulgence  of  him.  What,  gentlemen 
of  the  jury,  ^£’40,000  for  the  seduction  of  a woman  only  four  months 
known  to  the  defendant,  previously  too  successfully  assailed  by 
others,  and  plaintiff  the  claimant  for  such  a sum,  who  has  been, 
himself,  guilty  of  great  moral  delinquency  ! I am  no  advocate  for 
gallantry  of  this  kind,  but  I would  ask  you,  has  there  been  in  this 
case  a long  train  of  seduction,  a long  friendship  violated,  or  a con- 
fiding husband  betrayed  ? If  such  be  the  case,  punish  the  defend- 
ant ; punish  him  amply.  But,  on  the  contrary,  if  that  be  not  the 
fact,  and  the  evidence  laid  before  you  shows  it  was  not  the  fact ; if 
plaintiff’s  own  conduct  has  contributed  to  his  own  misfortune,  you 
are  not  to  reward  him  for  it.  What  is  it  to  the  plaintiff  that  Lord 
Headfort  is  a married  man  ? Is  his  injury  the  greater  ? You  have 
nothing  to  do  with  the  marriage  of  the  defendant.'  It  can  make  no 
difference  in  point  of  loss  whether  he  was  so  or  not.  His  being 
separate  from  his  wife  is  a reason,  a strong  reason,  why  the  plaintiff 
should  not  allow  his  wife  to  associate  with  him. 

4.  Vindictive  damages  not  recoverable. — The  damages 

MUST  BE  PROPORTIONATE  TO  THE  INJURY  AND  THE 
CONDUCT  OF  THE  PARTIES. 

The  plaintiff’s  counsel  have  talked  of  vindictive  damages  ; it  is 
an  expression  unintelligible  to  me.  They  have  said  he  should  be 
made  an  example  for  all  other  adulterers.  But  your  duty  is  to  give 
damages  proportionate  to  the  injuries  sustained,  and  the  conduct 
of  the  parties,  otherwise  you  may  as  well  give  damages  because 
others  have  committed  the  same  offense,  so  as  to  prevent  the  repe- 
tition of  it.  If  one  man  had  assaulted  another  so  grievously  as  to 
put  out  his  eyes,  it  seems  to  me  it  would  be  equally  right  in  you  to 
give  vindictive  damages  to  prevent  the  repetition  of  it,  as  it  would 
be  to  do  so  in  the  present  case.  But  the  fact,  is,  each  case  must 
rest  on  its  own  merits.  You  will  ask  yourselves  these  questions  : 
Did  the  plaintiff  see  his  wife  dressed  in  ornaments  beyond  her 
means,  and  which  he  never  supplied  ? Had  he  such  warning  as 
ought  to  have  been  sufficient  to  put  him  on  his  guard  ? If  he  had 
discharged  his  duty,  could  he  have  occasion  for  bringing  this  ac- 
tion ? The  evidence  laid  before  you  has  given  an  answer  to  these 
questions,  and  ought  to  be  the  rule  by  which  your  verdict  shouid 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


689 


be  regulated.  The  liberty  happily  allowed  to  women  in  these 
countries  will  often  subject  the  best  of  husbands  to  deception  ; but 
it  is  better,  allow  it,  than  to  have  recourse  to  the  horrible  and  abom- 
inable coercions  practiced  in  other  countries.  Here,  women  are 
their  own  mistresses,  and  men  are  not  their  masters.  If  husbands, 
acting  under  the  generous  feelings  that  are  encouraged  in  these 
countries,  are  deceived,  and  if  foul  advantages  are  taken  of  them, 
it  is  hard  to  consider  any  compensation  too  great  for  the  injury 
they  sustain  ; but  if  the  husband  not  only  neglects,  but  almost  in- 
vites addresses  to  his  wife,  he  shall  not  be  compensated.  What  is 
the  law  in  other  cases  ? Is  not  the  neglect  or  want  of  vigilance  of 
one's  property  considered  by  the  law  as  not  entitled  to  redress  ? Is 
not  an  estate  often  lost  because  the  claim  has  not  been  made  in  a 
reasonable  time  ? And  why  should  it  be  otherwise  in  an  action 
like  this  ? Was  the  plaintiff’s  own  conduct  prudent  and  discreet  ? 
It  has  been  said  he  ordered  separate  beds  for  himself  and  his  wife  ; 
that  he  had  forbid  her  for  three  weeks  to  visit  Limerick  ? and  yet, 
strange  to  tell,  the  defendant  during  that  time  was  received  at  his 
house.  But  suppose  the  defendant  was  not  received  there — sup- 
posing the  worst  that  can  be  said  for  my  client — could  not  the 
plaintiff  have  denied  him  admittance  ? Could  not  he  have  removed 
for  a time  to  the  country  with  his  wife  ? The  conduct  of  the 
plaintiff  and  his  relations  was  far  different.  No  indignation  was 
expressed  among  them  at  the  defendant’s  conduct.  He  dined 
often  after  at  plaintiff’s  brother’s  house.  Could  the  rigid  injunction 
of  plaintiff  on  his  wife,  not  to  visit  Limerick  or  receive  the  defend- 
ant, be  considered  serious  ? Was  he  not  induced  to  think,  when 
he  was  received  at  plaintiff’s  house  after  such  an  injunction,  that 
the  whole  proceeding  was  a mockery  ? The  witness  said  it  was  the 
fault  of  the  head  and  not  of  the  heart  of  the  plaintiff  that  occa- 
sioned this  neglect  of  his  wife.  Admitted.  It  was  still  weakness 
in  the  extreme  not  to  discountenance  the  defendant  altogether.  If 
a man  is  told  in  words  his  advances  are  not  welcome,  and  yet  the 
manner  and  actions  contradict  these  words,  which  is  to  be  be- 
lieved ? The  defendant  knew  that  plaintiff  lived  in  habits  of  in- 
timacy with  his  brother,  frequented  that  brother’s  house,  dined 
with  him,  when  he  well  knew  that  the  wife  of  that  brother  was  ban- 
ished from  her  home,  and,  in  her  place,  was  substituted  the  mistress 
of  the  brother,  who  sat  at  the  head  of  his  table  and  discharged  all 
the  other  duties  of  the  legitimate  wife.  The  plaintiff  left  his  wife 

alone,  spent  days  and  dined  in  company  with  Mrs.  Harvey.  The 
44 


690 


SPEECH  OF  Rt.  Hon.  GEORGE  PONSONBY. 


plaintiff  being  a clergyman  has  nothing  to  do  with  this  action. 
He  is  no  more  entitled  to  damages  for  that  reason  than  any  other 
man.  It  makes  it  only  the  more  incumbent  on  him  to  attend  to 
the  morals  and  conduct  of  his  wife. 

5.  While  the  defendant’s  acts  cannot  be  justified,  the 
plaintiff’s  conduct  is  not  free  from  blame. 

I do  not  justify  the  defendant ; I do  not  accuse  the  plaintiff  of 
connivance  ; but  I do  insist  that  his  own  conduct,  his  own  way  of 
life,  has  occasioned  whatever  misfortune  he  has  suffered.  That 
this  unhappy  woman  has  yielded  to  the  addresses  of  four  months 
cannot  be  disputed.  What  was  the  occasion  of  it?  Was  it  the 
prospect  of  marriage?  Was  it  love  ? No.  Twenty-five  does  not 
love  fifty.  Her  husband  was  but  twenty-eight.  She  could  not 
leave 

“ That  fair  and  fertile  plain  to  batten  on  that  moor.” 

Love  might  be  a strong  excuse  for  such  conduct,  because  it  is 
often  too  strong  for  law,  virtue,  or  morality  ; it  becomes  entitled, 
therefore,  to  human  commiseration.  But  how  is  it  possible  to  con- 
ceive that  a woman  of  twenty-five  could,  after  an  acquaintance  of 
four  months,  be  induced  by  a violence  of  love  to  throw  herself  into 
the  arms  of  a man  of  fifty  ? If  this  husband’s  conduct  was  virtuous 
and  vigilant ; if  his  wife’s  conduct  was  moral  and  domestic  ; and 
if  not,  notwithstanding  she  was  seduced  from  him  ; if  the  plaintiff 
was  everything  that  was  right,  and  the  defendant  everything  that 
was  abominable,  why,  then,  give  damages  ? But  do  not  say  that  be- 
cause defendant  is  rich  ; because  he  is  a man  of  intrigue  ; because 
he  is  a man  of  gallantry  ; therefore  give  vindictive  damages.  If 
the  breath  of  slander  had  never  reached  this  lady  previous  to  her 
acquaintance  with  the  defendant,  punish  the  defendant  for  his  se- 
duction ; but,  on  the  contrary,  if  the  defendant  has  been  deceived 
by  the  husband  and  seduced  by  the  wife,  as  men  of  sense  con- 
sider whether  he  ought,  therefore,  to  be  punished  by  vindictive 
damages. 


SPEECH  OF  JOHN  PHILPOT  CURRAN. 

Closing  for  Plaintiff  in  Massy  v.  The  Marquis  of  Head- 
fort. — Damages  for  Criminal  Conversation.  • 

AT  ENNIS  ASSIZES,  COUNTY  CLARE,  BEFORE  BARON  SMITH 
AND  A SPECIAL  JURY,  FRIDAY,  JULY  27th,  1804. 


Damages  claimed,  ^40,000.  Amount  recovered,  10,000. 


Analysis  of  Me.  Cueean’s  Speech. 


1.  Theory  of  damages  in  this  class  of  ac- 

tions.— Why  the  verdict  cannot  be  set 
aside  for  excess. 

2.  Statement  of  the  questions  to  be  consid- 

ered by  the  jury. 

3.  The  charge  of  connivance  a false  and  im- 

pudent defense. — Plaintiff’s  indiscre- 
tion no  crime. 

4.  Supposed  remonstrance  -with  the  defend- 

ant, when  about  to  commit  the  offense. 

5.  Shameful  experience  resulting  from  a 

previous  elopement  of  which  the  de- 
fendant had  been  guilty. 


6.  Disgraceful  conduct  of  the  defendant  in 

the  present  case. 

7.  The  character  of  the  defense  an  aggra- 

vation of  the  crime,  and  an  insult  to 
the  jury. 

8.  Reasons  why  liberal  damages  should  be 

awarded. 

9.  Sketch  of  the  trial  and  nature  of  the  ver- 

dict anticipated  by  the  defendant. 

10.  Exemplary  damages  should  be  given  for 
a breach  of  plaintiff’s  hospitality. — 
The  husband’s  sufferings  depicted. 


Mr.  Curran  has  been  considered  by  competent  critics  the  most  complete 
example  of  the  Irish  school  of  eloquence,  and  his  effort  on  the  present  occasion 
is  generally  regarded  as  one  of  his  best.  “ His  speeches  ” says  a learned  British 
reviewer,  “ combine  the  most  prominent  beauties  and  defects  ; those  beauties  fre- 
quently overshadowed,  as  it  were,  by  their  neighboring  deformities ; and  those 
very  deformities  sometimes  consecrated  by  their  adjoining  beauties.  Tried  with- 
in the  jurisdiction  of  severe  taste,  the  style  would  be  condemned  as  too  florid  and 
Asiatic.  We  are  grieved  at  this  unrestrained  appetite  for  decoration.  We  look  in 
vain  for  those  under-parts  in  rhetoric  which  ought  to  be  occasionally  interposed 
as  resting  places  to  relieve  the  mind  in  its  efforts  to  follow  him.  Every  topic, 
whether  primary  or  subordinate,  is  dressed  in  the  same  gorgeous  trappings  ; more 
ambitious  of  starting  and  surprising  than  of  fixing  a steady  and  gradual  convic- 
tion in  the  understanding,  he  misses  the  object  which  ought  to  be  the  exclusive 
aim  of  the  orator.  He  deserts  the  high  road  to  the  human  heart  by  perpetual 
deviations  after  the  flowers  that  grow  by  the  wayside.  The  unintermitted  play 
of  metaphor  dazzles  and  fatigues  us.  In  the  perusal  of  his  speeches  we  are  in- 
dulged to  satiety  with  a gaudy  succession  of  images,  scattered  about  by  a fancy 
perpetually  at  work,  but  not  unfrequently  offending  us  by  that  which  is  fatal  to 
an  image,  the  want  of  congruity  in  fitness.  The  reason  and  judgment  reject  the 


692 


SPEECH  OF  JOHN  PHILPOT  CURRAN 


unsubstantial  and  airy  creations  of  an  unfettered  imagination.  They  demand 
that  chaste,  though  not  unadorned  diction  in  which  the  cause  itself  may  be  said 
to  speak,  and  the  pleader  is  comparatively  silent.”  ‘ 

If,  however,  Mr.  Curran  is  to  be  considered  as  the  most  shining  example  of 
the  Irish  school,  to  what  class  must  we  assign  Burke  and  Flood,  Grattan,  Sheri- 
dan and  Plunket  ? Theirs  was  not  the  exuberant  and  florid  style  of  Mr.  Cur- 
ran, but  it  will  not  be  denied  that  their  more  restrained  and  elegant  diction  be- 
longs to  the  highest  order  of  intellect,  and  that  their  work  is  immortal.  They 
were  Irishmen,  but  they  belonged  to  no  school.  One  proof  of  genuine  elo- 
quence is,  that  independent  of  local  or  historical  associations,  there  is  nothing, 
in  the  mannerism  of  the  speaker,  to  indicate  to  what  age  or  country  he  belonged. 

Notwithstanding  his  alleged  imperfections,  Mr.  Curran  was  a great  advocate, 
and  his  power  over  juries  was  wonderful.  Those  things  which  the  precise  scholi- 
ast may  characterize  as  faults  of  style,  were  the  very  elements  of  his  success.  His 
ability  to  paint  the  misfortunes  of  his  client  in  vivid  colors,  to  awaken  sympathy 
and  allay  prejudices,  brought  him  large  verdicts.  He  cared  not  how  his  speech 
looked  in  print.  He  was  not  talking  to  posterity,  nor  to  please  the  schoolmen. 
All  his  powers  were  concentrated  to  sway  the  passions  of  the  heart  ; and  if  the 
result  elicited  the  applause  of  the  multitude,  or  created  an  irresistible  desire  to 
carry  him  in  triumph  through  the  streets;  if  his  advocacy  effected  the  release  of 
the  accused,  or  gained  liberal  verdicts,  his  success  was  genuine  and  his  reward 
instant.  One  secret  of  Mr.  Curran’s  power  was  that  he  appealed  to  the  heart 
rather  than  to  the  intellect. 

In  pleading  the  cause  of  Mr.  Massy,  Mr.  Curran  was  in  a position  to  appre- 
ciate keenly  his  client’s  situation,  since  he  had  himself  previously  suffered  the 
same  injury,  under  the  same  circumstances.  He  presented  the  plaintiff’s  case  as 
follows ; 

May  it  please  the  Court, — Ge7itlemen  of  the  Jury : — Never, 
so  clearly  as  in  the  present  instance,  have  I observed  that  safe- 
guard of  justice  which  Providence  has  placed  in  the  nature  of  man. 
Such  is  the  imperious  dominion  with  which  truth  and  reason  wave 
their  scepter  over  the  human  intellect,  that  no  solicitation,  however 
artful,  no  talent,  however  commanding,  can  reduce  it  from  its  al- 
legiance. In  proportion  to  the  humility  of  our  submission  to  its 
rule,  do  we  rise  into  some  faint  emulation  of  that  ineffable  and 
presiding  divinity  whose  characteristic  attribute  it  is  to  be  coerced 
and  bound  by  the  inexorable  laws  of  its  own  nature,  so  as  to  be 
all-wise  and  all-just  from  necessity  rather  than  election.  You  have 
seen  it,  in  the  learned  advocate  who  has  preceded  me,  most  peculi- 
arly and  strikingly  illustrated.  You  have  seen  even  his  great 
talents,  perhaps  the  first  in  any  country,  languishing  under  a cause 
too  weak  to  carry  him,  and  too  heavy  to  be  carried  by  him.  He 
was  forced  to  dismiss  his  natural  candor  and  sincerity,  and,  having 


’ Monthly  Review,  vol.  90,  page  337. 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


693 


no  merits  in  his  case,  to  substitute  the  dignity  of  his  own  manner, 
the  resources  of  his  own  ingenuity,  over  the  overwhelming  difficul- 
ties with  which  he  was  surrounded.  Wretched  client ! unhappy 
advocate  ! What  a combination  do  you  form  ! But  such  is  the 
condition  of  guilt — its  commission  mean  and  tremulous  ; its  defense 
artificial  and  insincere  ; its  prosecution  candid  and  simple  ; its  con- 
demnation dignified  and  austere.  Such  has  been  the  defendant’s 
guilt  ; such  his  defense  ; such  shall  be  my  address,  and  such,  I 
trust,  your  verdict. 

I.  Theory  of  damages  in  this  class  of  actions. — Why  the 

VERDICT  CANNOT  BE  SET  ASIDE  FOR  EXCESS. 

The  learned  counsel  has  told  you  that  this  unfortunate  woman 
is  not  to  be  estimated  at  forty  thousand  pounds.  Fatal  and  un- 
questionable is  the  truth  of  this  assertion.  Alas  ! gentlemen,  she 
is  no  longer  worth  anything  ; faded,  fallen,  degraded  and  disgraced, 
she  is  worth  less  than  nothing.  But  it  is  for  the  honor,  the  hope, 
the  expectation,  the  tenderness  and  the  comforts  that  have  been 
blasted  by  the  defendant,  and  have  fled  forever,  that  you  are  to  re- 
munerate the  plaintiff  by  the  punishment  of  the  defendant.  It  is 
not  her  present  value  which  you  are  to  weigh ; but  it  is  her  value 
at  that  time  when  she  sat  basking  in  a husband’s  love,  with  the 
blessing  of  Heaven  on  her  head,  and  its  purity  in  her  heart ; when 
she  sat  among  her  family  and  administered  the  morality  of  the  pa- 
rental board  ; estimate  that  past  value,  compare  it  with  its  present 
deplorable  diminution,  and  it  may  lead  you  to  form  some  judgment 
of  the  severity  of  the  injury  and  the  extent  of  the  compensation. 

The  learned  counsel  has  told  you  you  ought  to  be  cautious,  be- 
cause your  verdict  cannot  be  set  aside  for  excess.  The  assertion  is 
just ; but  has  he  treated  you  fairly  by  its  application  ? His  cause 
would  not  allow  him  to  be  fair,  for  why  is  the  rule  adopted  in  this 
single  action  ? Because,  this  being  peculiarly  an  injury  to  the  most 
susceptible  of  all  human  feelings,  it  leaves  the  injury  of  the  husband 
to  be  ascertained  by  the  sensibility  of  the  jury,  and  does  not  pre- 
sume to  measure  the  justice  of  their  determination  by  the  cold  and 
chilly  exercise  of  its  own  discretion.  In  any  other  action  it  is  easy 
to  calculate.  If  a tradesman’s  arm  is  cut  off,  you  can  measure  the 
loss  which  he  has  sustained  ; but  the  wound  of  feeling  and  the 
agony  of  the  heart  cannot  be  judged  by  any  standard  with  which  I 
am  acquainted.  You  are,  therefore,  unfairly  dealt  with  when  you 


694 


SPEECH  CF  JOHN  PHILPOT  CURRAN 


are  called  on  to  appreciate  the  present  suffering  of  the  husband  by 
the  present  guilt,  delinquency  and  degradation  of  his  wife.  As  well 
might  you,  if  called  on  to  give  compensation  to  a man  for  the  mur- 
der of  his  dearest  friend,  to  find  the  measure  of  his  injury  by  weigh- 
ing the  ashes  of  the  dead.  But  it  is  not,  gentlemen  of  the  jury,  by 
weighing  the  ashes  of  the  dead  that  you  would  estimate  the  loss  of 
the  survivor. 

The  learned  counsel  has  referred  you  to  other  cases  and  other 
countries  for  instances  of  moderate  verdicts.  I can  refer  you  to 
some  authentic  instances  of  just  ones.  In  the  next  county,  ^15,000 
against  a subaltern  officer.  In  Travers  and  M’Carthy,  ^5,000 
against  a servant.  In  Tighe  against  Jones,  10,000  against  a man 
not  worth  a shilling.  What,  then,  ought  to  be  the  rule  where  rank 
and  power,  and  wealth  and  station  have  combined  to  render  the 
example  of  his  crime  more  dangerous  ; to  make  his  guilt  more  odi- 
ous ; to  make  the  injury  to  the  plaintiff  more  grievous,  because  more 
conspicuous  ? I affect  no  leveling  familiarity  when  I speak  of  per- 
sons in  the  higher  ranks  of  society.  Distinctions  of  orders  are 
necessary,  and  I always  feel  disposed  to  treat  them  with  respect. 
But  when  it  is  my  duty  to  speak  of  the  crimes  by  which  they  are 
degraded,  I am  not  so  fastidious  as  to  shrink  from  their  contact 
when  to  touch  them  is  essential  to  their  dissection.  In  this  action, 
the  condition,  the  conduct  and  circumstances  of  the  party  are  justly 
and  peculiarly  the  objects  of  your  consideration.  Who  are  the  par- 
ties ? The  plaintiff,  young,  amiable,  of  family  and  education.  Of 
the  generous  disinterestedness  of  his  heart  you  can  form  an  opin- 
ion, even  from  the  evidence  of  the  defendant,  that  he  declined  an 
alliance  which  would  have  added  to  his  fortune  and  consideration, 
and  which  he  rejected  for  an  unportioned  union  with  his  present 
wife.  She,  too,  at  that  time  young,  beautiful  and  accomplished  ; 
and  feeling  her  affection  for  her  husband  increase  in  proportion  as 
she  remembered  the  ardor  of  his  love  and  the  sincerity  of  his  sacri- 
fice. Look  now  to  the  defendant  ! I blush  to  name  him  ! I blush 
to  name  a rank  which  he  has  tarnished,  and  a patent  that  he  has 
worse  than  cancelled.  High  in  the  army ; high  in  the  State  ; the 
hereditary  counsellor  of  the  king ; of  wealth  incalculable,  and  to 
this  last.  I advert  with  an  indignant  and  contemptuous  satisfaction, 
because,  as  the  only  instrument  of  his  guilt  and  shame,  it  will  be 
the  means  of  his  punishment  and  the  source  of  compensation  for 
his  guilt. 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


095 


2.  Statement  of  the  questions  to  be  considered  by  the 

JURY. 

But  let  me  call  your  attention  distinctly  to  the  questions  you 
have  to  consider.  The  first  is  the  fact  of  guilt.  Is  this  noble  Lord 
guilty  ? His  counsel  knew  too  well  how  they  would  have  mortified 
his  vanity,  had  they  given  the  smallest  reason  to  doubt  the  splendor 
of  his  achievement.  Against  any  such  humiliating  suspicion,  he 
had  taken  the  most  studious  precaution  by  the  publicity  of  the  ex- 
ploit. And  here  in  this  court,  and  before  you,  and  in  the  face  of 
the  country,  has  he  the  unparalleled  effrontery  of  disdaining  to  re- 
sort even  to  a confession  of  innocence.  His  guilt  established,  your 
next  question  is  the  damages  you  should  give.  You  have  been  told 
that  the  amount  of  the  damages  should  depend  on  circumstances. 
You  will  consider  these  circumstances,  whether  of  aggravation  or 
mitigation.  His  learned  counsel  contend  that  the  plaintiff  has  been 
the  author  of  his  own  suffering,  and  ought  to  receive  no  compensa- 
tion for  the  ill  consequences  of  his  own  conduct.  In  what  part  of 
the  evidence  do  you  find  any  foundation  for  that  assertion  ? He 
indulged  her,  it  seems,  in  dress.  Generous  and  attached,  he  prob- 
ably indulged  her  in  that  point  beyond  his  means  ; and  the  defend- 
ant now  impudently  calls  on  you  to  find  an  excuse  for  the  adulterer 
in  the  fondness  and  liberality  of  the  husband. 

But  you  have  been  told  that  the  husband  connived.  Odious  and 
impudent  aggravation  of  injury,  to  add  calumny  to  insult,  and  out- 
rage to  dishonor.  From  whom  but  a man  hackneyed  in  the  paths 
of  shame  and  vice  ; from  whom  but  from  a man  having  no  com- 
punctions in  his  own  breast  to  restrain  him,  could  you  expect  such 
brutal  disregard  for  the  feelings  of  others?  From  whom  but  the 
cold-blooded,  veteran  seducer ; from  what  but  from  the  exhausted 
mind,  the  habitual  community  with  shame  ; from  what  but  the  ha- 
bitual contempt  of  virtue  and  of  man,  could  you  have  expected  the 
arrogance,  the  barbarity  and  folly  of  so  foul,  because  so  false,  an 
imputation  ? He  should  have  reflected  and  have  blushed  before  he 
suffered  so  vile  a topic  of  defense  to  have  passed  his  lips.  But,  ere 
you  condemn,  let  him  have  the  benefit  of  the  excuse,  if  the  excuse 
be  true.  You  must  have  observed  how  his  counsel  fluttered  and 
vibrated  between  what  they  called  connivance  and  injudicious  con- 
fidence ; and  how,  in  affecting  to  distinguish,  they  have  confounded 
them  both  together.  If  the  plaintiff  has  connived,  I freely  say  to 
you,  do  not  reward  the  wretch  who  has  prostituted  his  wife  and 


G96 


SPEECH  OF  JOHN  PHILPOT  CURRAN 


surrendered  his  own  honor  ; do  not  compensate  the  pander  of  his 
own  shame,  and  the  willing  instrument  of  his  own  infamy.  But  as 
there  is  no  sum  so  low  to  which  such  a defense,  if  true,  ought  not 
to  reduce  your  verdict,  so  neither  is  any  so  high  to  which  such  a 
charge  ought  not  to  inflame  it,  if  such  a charge  be  false. 


3.  The  charge  of  connivance  a false  and  impudent  de- 
fense.— Plaintiff’s  indiscretion  no  crime. 

Where  is  the  single  fact  in  this  case  on  which  the  remotest 
suspicion  of  connivance  can  be  hung  ? Odiously  has  the  defendant 
endeavored  to  make  the  softest  and  most  amiable  feelings  of  the 
heart  the  pretext  of  his  slanderous  imputations.  An  ancient  and 
respectable  prelate,  the  husband  of  his  wife’s  sister,  was  chained 
down  to  the  bed  of  sickness,  perhaps  to  the  bed  of  death.  In  that 
distressing  situation,  my  client  suffered  that  wife  to  be  the  bearer  of 
consolation  to  the  bosom  of  her  sister  ; he  had  not  the  heart  to  re- 
fuse her,  and  the  softness  of  his  nature  is  now  charged  on  him  as  a 
crime  ! He  is  now  insolently  told  that  he  connived  at  his  dishonor, 
and  that  he  ought  to  have  foreseen  that  the  mansion  of  sickness 
and  of  sorrow  would  have  been  made  the  scene  of  assignation  and 
of  guilt.  On  this  charge  of  connivance  I will  not  further  weary 
you,  or  exhaust  myself  ; I will  add  nothing  more  than  that  it  is  as 
false  as  it  is  impudent ; that,  in  the  evidence,  it  has  not  a color  of 
support ; and  that,  by  your  verdict,  you  should  mark  it  with  rep- 
robation. The  other  subject,  namely,  that  he  was  indiscreet  in 
his  confidence,  does,  I think,  call  for  some  discussion  ; for  I trust 
you  see  that  I affect  not  any  address  to  your  passions  by  which  you 
may  be  led  away  from  the  subject.  I presume  merely  to  separate 
the  parts  of  this  affecting  case,  and  to  lay  them,  item  by  item,  be- 
fore you,  with  the  coldness  of  detail,  and  not  with  any  coloring  or 
display  of  fiction  or  of  fancy.  Honorable  to  himself  was  his  un- 
suspecting confidence  ; fatal  must  we  admit  it  to  have  been,  when 
we  look  to  the  abuse  committed  upon  it ; but  where  was  the  guilt 
of  this  indiscretion  ? He  did  admit  this  noble  Lord  to  pass  his 
threshold  as  his  guest.  Now  the  charge  which  this  noble  Lord 
builds  on  this  indiscretion,  is  : “ Thou  fool ! thou  hast  confidence 
in  my  honor,  and  that  was  a guilty  indiscretion  ; thou  simpleton, 
thou  thoughtest  that  an  admitted  and  cherished  guest  would  have 
respected  the  laws  of  honor  and  hospitality,  and  thy  indiscretion 
was  guilt.  Thou  thoughtest  that  he  would  have  shrunk  from  the 


IN  MASSY  V.  THE  MARQUIS  OF  HEAD  FORT. 


69T 


meanness  and  barbarity  of  requiting  kindness  with  treachery,  and 
thy  indiscretion  was  guilt.” 

Gentlemen,  what  horrid  alternative  in  the  treatment  of  wives 
would  such  reasoning  recommend  ? Are  they  to  be  immured  by 
worse  than  Eastern  barbarity  ? Are  their  principles  to  be  de- 
praved, their  passions  sublimated,  every  finer  motive  of  action  ex- 
tinguished by  the  inevitable  consequences  of  thus  treating  them 
like  slaves  ? Or  is  a liberal  and  generous  confidence  in  them  to  be 
the  passport  of  the  adulterer,  and  the  justification  of  his  crime  ? 

Honorably  but  fatally  for  his  own  repose,  he  was  neither  jealous, 
suspicious,  nor  cruel.  He  treated  the  defendant  with  the  confi- 
dence of  a friend,  and  his  wife  with  the  tenderness  of  a husband. 
He  did  leave  to  the  noble  Marquis  the  physical  possibility  of  com- 
mitting against  him  the  greatest  crime  which  can  be  perpetrated 
against  a being  of  an  amiable  heart  and  refined  education.  In  the 
middle  of  the  day,  at  the  moment  of  divine  worship,  when  the 
miserable  husband  was  on  his  knees,  directing  the  prayers  and 
thanksgiving  of  his  congregation  to  their  God,  that  moment  did  the 
remorseless  adulterer  choose  to  carry  off  the  deluded  victim  from 
her  husband,  from  her  child,  from  her  character,  from  her  happi- 
ness, as  if  not  content  to  leave  his  crime  confined  to  its  miserable 
aggravations,  unless  he  also  gave  it  a cast  and  color  of  factitious 
sacrilege  and  impiety. 

4.  Supposed  remonstrance  with  the  defendant,  when  about 

TO  COMMIT  THE  OFFENSE. 

Oh  ! how  happy  had  it  been  when  he  arrived  at  the  bank  of  the 
river  with  the  ill-faded  fugitive,  ere  yet  he  had  committed  her  to 
that  boat,  of  which,  like  the  fabled  bark  of  Styx,  the  exile  was 
eternal ; how  happy  at  that  moment,  so  teeming  with  misery  and 
with  shame,  if  you,  my  Lord,  had  met  him,  and  could  have  accosted 
him  in  the  character  of  that  good  genius  which  had  abandoned 
him.  How  impressively  might  you  have  pleaded  the  cause  of  the 
father,  of  the  child,  of  the  mother,  and  even  of  the  worthless  de- 
fendant himself.  You  would  have  said  : “ Is  this  the  requittal  that 
you  are  about  to  make  for  the  respect,  and  kindness  and  confidence 
in  your  honor  ? Can  you  deliberately  expose  this  young  man  in 
bloom  of  life,  with  all  his  hopes  yet  before  him  ? Can  you  expose 
him,  a wretched  outcast  from  society,  to  the  scorn  of  a merciless 
world  ? Can  you  set  him  adrift  upon  the  tempestuous  ocean  of  his 
own  passions,  at  this  early  season  when  they  are  most  headstrong ; 


698 


SPEECH  OF  JOHN  PHILPOT  CURRAN 


and  can  you  cut  him  out  from  the  moorings  of  those  domestic  obli 
gations  by  whose  cable  he  might  ride  at  safety  from  their  turbu- 
lence ? Think,  if  you  can  conceive  it,  what  a powerful  influence 
arises  from  the  sense  of  home,  from  the  sacred  religion  of  the  heart 
in  quelling  the  passions,  in  reclaiming  the  wanderings,  in  correcting 
the  disorders  of  the  human  heart.  Do  not  cruelly  take  from  him 
the  protection  of  these  attachments.  But  if  you  have  no  pity  for 
the  father,  have  mercy,  at  least,  upon  his  innocent  and  helpless 
child.  Do  not  condemn  him  to  an  education  scandalous  or  ne- 
glected. Do  not  strike  him  into  that  most  dreadful  of  all  human 
conditions,  the  orphanage  that  springs  not  from  the  grave,  that  falls 
not  from  the  hand  of  Providence  or  the  stroke  of  death  ; but  comes 
before  its  time,  anticipated  and  inflicted  by  the  remorseless  cruelty 
of  parental  guilt.”  For  the  poor  victim  herself,  not  yet  immolated, 
while  yet  balancing  upon  the  pivot  of  her  destiny,  your  heart  could 
not  be  cold,  nor  your  tongue  be  wordless.  You  would  have  said  to 
him  : “ Pause,  my  Lord,  while  there  is  yet  a moment  for  reflection. 
What  are  your  motives,  what  your  views,  what  your  prospects,  from 
what  you  are  about  to  do  ? You  are  a married  man,  the  husband 
of  the  most  amiable  and  respectable  of  women  ; you  cannot  look 
to  the  chance  of  marrying  this  wretched  fugitive.  Between  you 
and  such  an  event  there  are  two  sepulchers  to  pass.  What  are  your 
inducements  ? Is  it  love,  think  you  ? No.  Do  not  give  that  name 
to  any  attraction  you  can  find  in  the  faded  refuse  of  a violated  bed. 
Love  is  a noble  and  generous  passion  ; it  can  be  founded  only  on 
a pure  and  ardent  friendship,  on  an  exalted  respect,  on  an  implicit 
confidence  in  its  object.  Search  your  heart ; examine  your  judg- 
ment. Do  you  find  the  semblance  of  any  one  of  these  sentiments 
to  bind  you  to  her  ? What  could  degrade  a mind  to  which  nature 
or  education  had  given  port  or  stature,  or  character,  into  a friend- 
ship for  her  ? Could  you  repose  upon  her  faith  ? Look  in  her  face, 
my  Lord  ; she  is  at  this  moment  giving  you  the  violation  of  the 
most  sacred  of  human  obligations  as  the  pledge  of  her  fidelity.  She 
is  giving  you  the  most  irrefragable  proof  that  as  she  is  deserting  her 
husband  for  you,  so  she  would  without  scruple  abandon  you  for 
another.  Do  you  anticipate  any  pleasure  you  might  feel  in  the  pos- 
sible event  of  your  becoming  the  parents  of  a common  child  ? She 
is  at  this  moment  proving  to  you  that  she  is  as  dead  to  the  sense  of 
parental  as  of  conjugal  obligation,  and  that  she  would  abandon 
your  offspring  to-morrow  with  the  same  facility  with  which  she  now 
deserts  her  own.  Look,  then,  at  her  conduct  as  it  is,  as  the  world 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


699 


must  behold  it,  blackened  by  every  aggravation  that  can  make  it 
either  odious  or  contemptible,  and  unrelieved  by  a single  circum- 
stance of  mitigation  that  could  palliate  its  guilt  or  retrieve  it  from 
abhorrence. 

“ Mean,  however,  and  degraded  as  this  woman  must  be,  she  will 
still  (if  you  take  her  with  you)  have  strong  and  heavy  claims  upon 
you.  The  force  of  such  claims  does  certainly  depend  upon  circum- 
stances. Before,  therefore,  you  expose  her  fate  to  the  dreadful 
risk  of  your  caprice  or  ingratitude,  in  mercy  to  her  weigh  well  the 
confidence  she  can  place  in  your  future  justice  and  honor.  At  that 
future  tune,  much  nearer  than  you  think,  by  what  topics  can  her 
cause  be  pleaded  to  a sated  appetite,  to  a heart  that  repels  her,  to  a 
just  judgment  in  which  she  never  could  have  been  valued  or  re- 
spected ? Here  is  not  the  case  of  an  unmarried  woman,  with  whom 
a pure  and  generous  friendship  may  insensibly  have  ripened  into  a 
more  serious  attachment,  until  at  last  her  heart  became  too  deeply 
pledged  to  be  reassumed.  If  so  circumstanced,  without  any  hus- 
band to  betray,  or  child  to  desert,  or  motive  to  restrain,  except 
what  related  solely  to  herself,  her  anxiety  for  your  happiness  made 
her  overlook  every  other  consideration,  and  commit  her  destiny  to 
your  honor  ; in  such  a case  (the  strongest  and  the  highest  that 
man’s  imagination  can  suppose),  in  which  you,  at  least,  could  see 
nothing  but  the  most  noble  and  disinterested  sacrifice  ; in  which 
you  could  find  nothing  but  what  claimed  from  you  the  most  kind 
and  exalted  sentiment  of  tenderness  and  devotion  and  respect,  and 
in  which  the  most  fastidious  rigor  would  find  so  much  more  subject 
for  sympathy  than  blame  ; let  me  ask  you,  could  you,  even  in  that 
case,  answer  for  your  own  justice  and  gratitude  ? I do  not  allude 
to  the  long  and  pitiful  catalogue  of  paltry  adventures  in  which,  it 
seems,  your  time  has  been  employed : the  coarse  and  vulgar  suc- 
cession of  casual  connections,  joyless,  loveless,  and  unendeared. 
But  do  you  not  find  upon  your  memory  some  trace  of  an  engage- 
ment of  the  character  I have  sketched  ? ” 

5.  Shameful  experience  resulting  from  a previous  elope- 
ment OF  WHICH  THE  DEFENDANT  HAD  BEEN  GUILTY. 

“ Has  not  your  sense  of  what  you  would  owe  in  such  a case,  and 
to  such  a woman,  been  at  least  once  put  to  the  test  of  experiment  ? 
Has  it  not  once,  at  least,  happened  that  such  a woman,  with  all  the 
resolution  of  strong  faith,  flung  her  youth,  her  hope,  her  beauty, 
her  talent,  upon  your  bosom,  weighed  you  against  the  world,  which 


YOO 


SPEECH  OF  JOHN  PHILPOT  CURRAN 


she  found  but  a feather  in  the  scale,  and  took  you  as  an  equivalent  ? 
How  did  you  then  acquit  yourself  ? Did  you  prove  yourself  worthy 
of  the  sacred  trust  reposed  in  you  ? Did  your  spirit  so  associate 
with  hers  as  to  leave  her  no  room  to  regret  the  splendid  and  disin- 
terested sacrifice  she  had  made  ? Did  her  soul  find  a pillow  in  the 
tenderness  of  yours,  and  a support  in  its  firmness  ? Did  you  pre- 
serve her  high  in  her  own  consciousness,  proud  in  your  admiration 
and  friendship,  and  happy  in  your  affection  ? You  might  have  so 
acted  (and  the  man  that  was  worthy  of  her  would  have  perished 
rather  than  not  so  act)  as  to  make  her  delighted  with  having  con- 
fided so  sacred  a trust  to  his  honor.  Did  you  so  act  ? Did  she 
feel  that,  however  precious  to  your  heart,  she  was  still  more  exalted 
and  honored  in  your  reference  and  respect  ? Or  did  she  find  you 
coarse  and  paltry,  fluttering  and  unpurposed,  unfeeling  and  un- 
grateful ? You  found  her  a fair  and  blushing  flower,  its  beauty 
and  its  fragrance  bathed  in  the  dews  of  Heaven.  Did  you  so  ten- 
derly transplant  it  as  to  preserve  that  beauty  and  fragrance  unim- 
paired ? Or  did  you  so  rudely  cut  it  as  to  interrupt  its  nutriment, 
to  waste  its  sweetness,  to  blast  its  beauty,  to  bow  down  its  faded 
and  sickly  head  ? And  did  you  at  last  fling  it,  like  ‘ a loathsome 
weed,  away  ? ’ If,  then,  to  such  a woman,  so  clothed  with  every 
title  that  could  ennoble  and  exalt,  and  endear  her  to  the  heart  of 
man,  you  could  be  cruelly  and  capriciously  deficient,  how  can  a 
wretched  fugitive  like  this,  in  every  point  her  contrast,  hope  to  find 
you  just  ? Send  her,  then,  away.  Send  her  back  to  her  home,  to 
her  child,  to  her  husband,  to  herself.” 

6.  Disgraceful  conduct  of  the  defendant  in  the  present 

CASE. 

Alas,  there  was  none  to  hold  such  language  to  this  noble  de- 
fendant ; he  did  not  hold  it  to  himself.  But  he  paraded  his  despi- 
cable prize  in  his  own  carnage,  with  his  own  retinue,  his  own  serv- 
ants. This  veteran  Paris  hawked  his  enamored  Helen  from  this 
western  quarter  of  the  island  to  a seaport  in  the  eastern,  crowned 
with  the  acclamations  of  a senseless  and  grinning  rabble,  glorying 
and  delighted,  no  doubt,  in  the  leering  and  scoffing  admiration  of 
grooms  and  hostlers  and  waiters,  as  he  passed.  In  thistpdious 
contempt  of  every  personal  feeling,  of  public  opinion,  of  common 
humanity,  did  he  parade  this  woman  to  the  seaport,  whence  he 
transported  his  precious  cargo  to  a country  where  her  example  may 
be  less  mischievous  than  in  her  own  ; where,  I agree  with  my 


IN  MASSY  V.  THE  MARQUIS  OF  IIEADFORT. 


701 


learned  colleague  in  heartily  wishing,  he  may  remain  with  her  for- 
ever. We  are  too  poor,  too  simple,  too  unadvanced  a country  for 
the  example  of  such  achievements.  When  the  relaxation  of  morals 
is  the  natural  growth  and  consequence  of  the  great  progress  of  arts 
and  wealth,  it  is  accomplished  by  a refinement  that  makes  it  less 
gross  and  shocking.  But  for  such  palliations  we  are  at  least  a cen- 
tury too  young.  I advise  you,  therefore,  most  earnestly  to  rebuke 
this  budding  mischief,  by  letting  the  wholesome  vigor  and  chastise- 
ment of  a liberal  verdict  speak  what  you  think  of  its  enormity. 
In  every  point  of  view  in  which  I can  look  at  the  subject,  I see 
you  are  called  upon  to  give  a verdict  of  bold  and  just  and  indignant 
and  exemplary  compensation.  The  injury  of  the  plaintiff  demands 
it  from  your  justice.  The  delinquency  of  the  defendant  provokes 
it  by  its  enormity.  The  rank  on  which  he  has  relied  for  impunity 
calls  upon  you  to  tell  him  that  crime  does  not  ascend  to  the  rank 
of  the  perpetrator,  but  the  perpetrator  sinks  from  his  rank  and 
descends  to  the,  level  of  his  delinquency. 

7.  The  character  of  the  defense  an  aggravation  of  the 

CRIME,  AND  AN  INSULT  TO  THE  JURY. 

The  style  and  mode  of  his  defense  is  a gross  aggravation  of  his 
conduct,  and  a gross  insult  upon  you.  Look  upon  the  different 
subjects  of  his  defense  as  you  ought,  and  let  him  profit  by  them  as 
he  deserves.  Vainly  presumptuous  upon  his  rank,  he  wishes  to 
overawe  you  by  the  despicable  consideration.  He  next  resorts  to 
a cruel  aspersion  upon  the  character  of  the  unhappy  plaintiff  whom 
he  had  already  wounded  beyond  the  possibility  of  reparation.  He 
has  ventured  to  charge  him  with  connivance.  As  to  that,  I will 
only  say,  gentlemen  of  the  jury,  do  not  give  this  vain  boaster  a pre- 
text for  saying,  that  if  the  husband  connived  in  the  offense  the  jury 
also  connived  in  the  reparation. 

But  he  has  pressed  another  curious  topic  upon  you.  After  the 
plaintiff  had  cause  to  suspect  his  designs,  and  the  likelihood  of  their 
being  fatally  successful,  he  did  not  then  act  precisely  as  he  ought. 
Gracious  God,  what  an  argument  for  him  to  dare  to  advance  ! It 
is  saying  thus  to  him  : “ I abused  your  confidence,  your  hospitality; 
I laid  a base  plan  for  the  seduction  of  the  wife  of  your  bosom  ; I 
succeeded  at  last,  so  as  to  throw  in  upon  you  that  most  dreadful  of 
all  suspicions  to  a man  fondly  attached,  proud  of  his  wife’s  honor, 
and  tremblingly  alive  to  his  own  ; that  you  were  possibly  a dupe 
to  the  confidence  in  the  wife  as  much  as  in  the  guest.  In  this  so 


T02 


SPEECH  OF  JOHN-  PHILPOT  CURRAN 


pitiable  distress,  which  I myself  had  studiously  and  deliberately 
contrived  for  you  ; between  hope  and  fear,  and  doubt  and  love, 
and  jealousy  and  shame  ; one  moment  shrinking  from  the  cruelty 
of  your  suspicion,  the  next  fired  with  indignation  at  the  facility  and 
credulity  of  your  acquittal ; in  this  labyrinth  of  doubt,  in  this  frenzy 
of  suffering,  you  were  not  collected  and  composed.  You  did  not 
act  as  you  might  have  done  if  I had  not  worked  you  to  madness  ; 
and  upon  that  very  madness  which  I have  inflicted  upon  you,  upon 
the  very  completion  of  my  guilt  and  of  your  misery,  I will  build 
my  defense.  You  will  not  act  critically  right,  and  therefore  are 
unworthy  of  compensation.”  Gentlemen,  can  you  be  dead  to  the 
remorseless  atrocity  of  such  a defense  ! And  shall  not  your  honest 
verdict  mark  it  as  it  deserves  ? 

But  let  me  go  a little  further ; let  me  ask  you,  for  I confess  I 
have  no  distinct  idea  of  what  should  be  the  conduct  of  a husband 
so  placed,  and  who  is  to  act  critically  right.  Shall  he  lock  her  up 
or  turn  her  out  ? Or  enlarge  or  abridge  her  liberty  of  acting  as  she 
pleases  ? Oh,  dreadful  Areopagus  of  the  tea-table  ! How  formid- 
able thy  inquests,  how  tremendous  thy  condemnations  ! In  the 
first  case,  he  is  brutal  and  barbarous  ; an  odious  Eastern  despot. 
In  the  next,  what ! To  turn  an  innocent  woman  out  of  his  house 
without  evidence  or  proof,  but  merely  because  he  is  vile  and  mean 
enough  to  suspect  the  wife  of  his  bosom  and  the  mother  of  his 
child  ! Between  these  extremes,  what  intermediate  degree  is  he  to 
adopt  ? I put  this  question  to  you  ; do  you  at  this  moment,  unin- 
fluenced by  any  passion  as  you  now  are,  but  cool  and  collected  and 
uninterested  as  you  must  be,  do  you  see  clearly  this  proper  and  exact 
line  which  the  plaintiff  should  have  pursued  ? I much  question  if 
you  do.  But  if  you  did  or  could,  must  you  not  say  that  he  was  the 
last  man  from  whom  you  should  expect  the  coolness  to  discover  or 
the  steadiness  to  pursue  it  ? And  yet  this  is  the  outrageous  and  in- 
solent defense  that  is  put  forward  to  you.  My  miserable  client, 
when  his  brain  was  on  fire  and  every  fiend  of  hell  was  let  loose 
upon  his  heart,  he  should  then,  it  seems,  have  placed  himself  before 
his  mirror ; he  should  have  taught  the  stream  of  agony  to  flow  de- 
corously down  his  forehead.  He  should  have  composed  his  feat- 
ures to  harmony,  he  should  have  writhed  with  grace  and  groaned 
in  melody. 

But  look  farther  to  this  noble  defendant  and  his  honorable  de- 
fense : the  wretched  woman  is  to  be  successfully  the  victim  of  se- 
duction and  of  slander.  She,  it  seems,  received  marked  attentions. 


m MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


703 


Here,  I confess,  I felt  myself  not  a little  at  a loss.  The  witnesses 
could  not  describe  what  these  marked  attentions  were  or  are.  They 
consisted  not,  if  you  believe  the  witness  that  swore  to  them,  in  any 
personal  approach  or  contact  whatsoever,  nor  in  any  unwarrantable 
topics  of  discourse.  Of  what  materials,  then,  were  they  composed  ? 
Why,  it  seems  a gentleman  had  the  insolence  at  table  to  propose 
to  her  a glass  of  wine,  and  she,  O most  abandoned  lady  ! instead 
of  flying,  like  an  angry  parrot,  at  his  head,  and  besmirching  and 
bescratching  him  for  his  insolence,  tamely  and  basely  replies,  Port, 
sir,  if  you  please.”  But,  gentlemen,  why  do  I advert  to  this  folly, 
this  nonsense  ? Not,  surely,  to  vindicate  from  censure  the  most  in- 
nocent and  the  most  delightful  intercourse  of  social  kindness,  of 
harmless  and  cheerful  courtesy : “ where  virtue  is,  these  are  most 
virtuous.”  But  I am  soliciting  your  attention  and  your  feeling  to 
the  mean  and  odious  aggravation,  to  the  unblushing  and  remorse- 
less barbarity  of  falsely  aspersing  the  wretched  woman  he  had  un- 
done. One  good  he  has  done,  he  has  disclosed  to  you  the  point  in 
which  he  can  feel ; for  how  imperious  must  that  avarice  be  which 
could  resort  to  so  vile  an  expedient  of  frugality?  Yes,  I will  say, 
that,  with  the  common  feelings  of  a man,  he  would  have  rather 
suffered  his  ;£^3o,ooo  a year  to  go  as  compensation  to  the  plaintiff 
than  saved  a shilling  of  it  by  so  vile  an  expedient  of  economy.  He 
would  rather  have  starved  with  her  in  a jail,  he  would  rather  have 
sunk  with  her  into  the  ocean,  than  have  so  vilifled  her — than  have 
so  degraded  himself. 

8.  Reasons  why  liberal  damages  should  be  awarded. 

But  it  seems,  gentlemen,  and,  indeed,  you  have  been  told,  that 
long  as  the  course  of  his  gallantries  has  been  (and  he  has  grown 
gray  in  the  service),  it  is  the  first  time  he  has  been  called  upon  for 
damages.  To  how  many  might  it  have  been  fortunate  if  he  had 
not  that  impunity  to  boast  ? Your  verdict  will,  I trust,  put  an  end 
to  that  encouragement  to  guilt  that  is  built  upon  impunity.  The 
devil,  it  seems,  has  saved  the  noble  Marquis  harmless  in  the  past ; 
but  your  verdict  will  tell  him  the  term  of  that  indemnity  is  expired, 
that  his  old  friend  and  banker  has  no  more  effects  in  his  hands, 
and  that,  if  he  draws  any  more  upon  him,  he  must  pay  his  own  bills 
himself.  You  will  do  much  good  by  doing  so.  You  may  not  en- 
lighten his  conscience  nor  touch  his  heart,  but  his  frugality  will 
understand  the  hint.  It  will  adopt  the  prudence  of  age,  and  deter 


704 


SPEECH  OF  JOHN  PIIILPOT  CURRAN 


him  from  pursuits  in  which,  though  he  may  be  insensible  of  shame, 
he  will  not  be  regardless  of  expense.  You  will  do  more,  you  will 
not  only  punish  him  in  his  tender  point,  but  you  will  weaken  him 
in  his  strong  one — his  money.  We  have  heard  much  of  this  noble 
Lord’s  wealth,  and  much  of  his  exploits,  but  not  much  of  his  ac- 
complishments or  his  wit.  I know  not  that  his  verses  have  soared 
even  to  the  poet’s  corner.  I have  heard  it  said  that  an  ass  laden 
Vvith  gold  could  find  his  way  through  the  gate  of  the  strongest  city. 
But,  gentlemen,  lighten  the  load  upon  his  back,  and  you  will  com- 
pletely curtail  the  mischievous  faculty  of  a grave  animal,  whose 
momentum  lies  not  in  his  agility,  but  his  weight ; not  in  the  quan- 
tity of  motion,  but  the  quantity  of  his  matter. 

There  is  another  ground  on  which  you  are  called  upon  to  give 
most  liberal  damages,  and  that  has  been  laid  by  the  unfeeling  vanity 
of  the  defendant.  This  business  has  been  marked  by  the  most  elab- 
orate publicity.  It  is  very  clear  that  he  has  been  allured  by  the 
glory  of  the  chase,  and  not  the  value  of  the  game.  The  poor  ob- 
ject of  his  pursuit  could  be  of  no  value  to  him,  or  he  could  not 
have  so  wantonly  and  cruelly  and  unnecessarily  abused  her.  He 
might  easily  have  kept  this  unhappy  intercourse  an  unsuspected 
secret.  Even  if  he  wished  for  her  elopement,  he  might  easily  have 
so  contrived  it  that  the  place  of  her  retreat  would  be  profoundly 
undiscoverable.  Yet,  though  even  the  expense  (a  point  so  tender 
to  his  delicate  sensibility)  of  concealing  could  not  be  a one-fortieth 
of  the  cost  of  publishing  her,  his  vanity  decided  him  in  favor  of 
glory  and  publicity.  By  that  election  he  has  in  fact  put  forward 
the  Irish  nation  and  its  character,  so  often  and  so  variously  calum- 
niated, upon  its  trial  before  the  tribunal  of  the  empire  ; and  your 
verdict  will  this  day  decide  whether  an  Irish  jury  can  feel  with 
justice  and  spirit  upon  a subject  that  involves  conjugal  affection 
and  comfort,  domestic  honor  and  repose,  the  certainty  of  issue,  the 
weight  of  public  opinion,  the  gilded  and  presumptuous  criminality 
of  ovei  r/eening  rank  and  station. 

9.  Sketch  of  the  trial  and  nature  of  the  verdict  antic- 
ipated BY  THE  DEFENDANT. 

I doubt  not  but  he  is  at  this  moment  reclined  on  a silken  sofa, 
anticipating  that  submissive  and  modest  verdict  by  which  you  will 
lean  gently  on  his  errors  ; and  expecting  from  your  patriotism,  no 
doubt,  that  you  will  think  again  and  again  before  ycu  condemn  any 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT.  705 

great  portion  of  the  immense  revenue  of  a great  absentee  to  be  de- 
tained in  the  nation  that  produced  it.  instead  of  being  transmitted, 
as  it  ought,  to  be  expended  in  the  splendor  of  another  country. 
He  is  now  probably  waiting  for  the  arrival  of  the  report  of  this  day, 
which  I understand  a famous  note-taker  has  been  sent  hither  to 
collect.  (Let  not  the  gentleman  be  disturbed.)  Gentlemen,  let  me 
assure  you  it  is  more,  much  more  the  trial  of  you  than  of  the  noble 
Marquis,  of  which  this  imported  recorder  is  at  this  moment  col- 
lecting the  materials.  His  noble  employer  is  now  expecting  a re- 
port to  the  following  effect:  “Such  a day  came  on  to  be  tried  at 
Ennis,  by  a special  jury,  the  cause  of  Charles  Massy  against  the 
most  noble  the  Marquis  of  Headfort.  It  appeared  that  the  plaint- 
iff’s wife  was  young,  beautiful  and  captivating.  The  plaintiff  him- 
self a person  fond  of  this  beautiful  creature  to  distraction,  and 
both  doting  on  their  child  ; but  the  noble  Marquis  approached 
her  ; the  plume  of  glory  nodded  on  his  head.  Not  the  Goddess 
Minerva,  but  the  Goddess  Venus  had  lighted  upon  his  casque,  ‘the 
fire  that  never  tires,  such  as  many  a lady  gay  had  been  dazzled 
with  before.’  At  the  first  advance  she  trembled,  at  the  second  she 
struck  to  the  redoubted  son  of  Mars  and  pupil  of  Venus.  The 
jury  saw  it  was  not  his  fault  (it  was  an  Irish  jury)  ; they  felt  com- 
passion for  the  tenderness  of  the  mother’s  heart,  and  for  the  warmth 
of  the  lover’s  passion.  The  jury  saw  on  the  one  side  a young,  en- 
tertaining gallant,  on  the  other  a beauteous  creature  of  charms  irre- 
sistible. They  recollected  that  Jupiter  had  been  always  successful 
in  his  amours,  although  Vulcan  had  not  always  escaped  some  awk- 
ward accidents.  The  jury  was  composed  of  fathers,  brothers,  hus- 
bands, but  they  had  not  the  vulgar  jealousy  that  views  little  things 
of  that  sort  with  rigor  ; and  wishing  to  assimilate  their  country  in 
every  respect  to  England,  now  that  they  are  united  to  it,  they,  like 
English  gentlemen,  returned  to  their  box  with  a verdict  of  sixpence 
damages  and  sixpence  costs.”  Let  this  be  sent  to  England.  I 
promise  you  your  odious  secret  will  not  be  kept  better  than  that  of 
the  wretched  Mrs.  Massy.  There  is  not  a bawdy  chronicle  in  Lon- 
don in  which  the  epitaph  which  you  would  have  written  on  your- 
selves will  not  be  published,  and  our  enemies  will  delight  in  the 
spectacle  of  our  precocious  depravity,  in  seeing  that  we  can  be 
rotten  before  we  are  ripe.  I do  not  suppose  it,  I do  not,  cannot, 
will  not,  believe  it.  I will  not  harrow  up  myself  with  the  antici- 
pated apprehension. 


45 


706 


SPEECH  OF  JOHN  PHTLPOT  CUPvRAN 


lo.  Exemplary  damages  should  be  given  for  a breach  op 
plaintiff’s  hospitality. — The  husband’s 

SUFFERINGS  DEPICTED. 

There  is  another  consideration,  gentlemen,  which,  I think,  most 
imperiously  demands  even  a vindictive  award  of  exemplary  dam- 
ages, and  that  is  the  breach  of  hospitality.  To  us  peculiarly  does 
it  belong  to  avenge  the  violation  of  its  altar.  The  hospitality  of 
other  countries  is  a matter  of  necessity  or  convention  ; in  savage 
nations  of  the  first,  in  polished  of  the  latter  ; but  the  hospitality  of 
an  Irishman  is  not  the  running  account  of  posted  and  legered 
courtesies,  as  in  other  countries  ; it  springs,  like  all  his  qualities, 
his  faults,  his  virtues,  directly  from  his  heart.  The  heart  of  an 
Irishman  is  by  nature  bold,  and  he  confides  : it  is  tender,  and  he 
loves;  it  is  generous,  and  he  gives;  it  is  social,  and  he  is  hospitable. 
This  sacrilegious  intruder  has  profaned  the  religion  of  that  sacred 
altar  so  elevated  in  our  worship,  so  precious  to  our  devotion  ; and 
it  is  our  privilege  to  avenge  the  crime.  You  must  either  pull  down 
the  altar  and  abolish  the  worship,  or  you  must  preserve  its  sanctity 
undebased.  There  is  no  alternative  between  the  universal  exclu- 
sion of  all  mankind  from  your  threshold,  and  the  most  rigorous 
punishment  of  him  who  is  admitted  and  betrays.  This  defendant 
has  been  so  trusted,  has  so  betrayed,  and  you  ought  to  make  him  a 
most  signal  example. 

Gentlemen,  I am  the  more  disposed  to  feel  the  strongest  indig- 
nation and  abhorrence  of  this  odious  conduct  of  the  defendant, 
when  I consider  the  deplorable  condition  to  which  he  has  reduced 
the  plaintiff,  and  perhaps  the  still  more  deplorable  one  that  he  has 
in  prospect  before  him.  What  a progress  has  he  to  travel  through 
before  he  can  attain  the  peace  and  tranquillity  which  he  has  lost  ? 
How  like  the  wounds  of  the  body  are  ^ those  of  the  mind  ! How 
burning  the  fever  ! How  painful  the  suppuration  ! How  slow, 
how  hesitating,  how  relapsing  the  process  to  convalescence  ! 
Through  what  a variety  of  suffering,  what  new  scenes  and  changes, 
must  my  unhappy  client  pass  ere  he  can  re-attain,  should  he  ever 
re-attain,  that  health  of  soul  of  which  he  has  been  despoiled  by  the 
cold  and  deliberate  machinations  of  this  practiced  and  gilded  se- 
ducer ? If,  instead  of  drawing  upon  his  incalculable  wealth  for  a 
scanty  retribution,  you  were  to  stop  the  progress  of  his  despicable 
achievements  by  reducing  him  to  actual  poverty,  you  could  not 
even  so  punish  him  beyond  the  scope  of  his  offense,  nor  reprize  the 


IN  MASSY  V,  THE  MARQUIS  OF  HEADFORT. 


707 


plaintiff  beyond  the  measure  of  his  suffering.  Let  me  remind  you, 
that  in  this  action  the  law  not  only  empowers  you,  but  that  its 
policy  commands  you  to  consider  the  public  example,  as  well  as  the 
individual  injury,  when  you  adjust  the  amount  of  your  verdict.  I 
confess  I am  most  anxious  that  you  should  acquit  yourself  worthily 
upon  this  important  occasion.  I am  addressing  you  as  fathers, 
husbands,  brothers.  I am  anxious  that  a feeling  of  those  high  re- 
lations should  enter  into  and  give  dignity  to  your  verdict.  But  I 
confess  it,  I feel  a tenfold  solicitude  when  I remember  that  I am 
addressing  you  as  my  countrymen,  as  Irishmen,  whose  characters 
as  jurors,  as  gentlemen,  must  find  either  honor  or  degradation  in 
the  result  of  your  decision.  Small  as  must  be  the  distributive 
share  of  that  national  estimation  that  can  belong  to  so  unimportant 
an  individual  as  myself,  yet  do  I own  I am  tremblingly  solicitous 
for  its  fate.  Perhaps  it  appears  of  more  value  to  me,  because  it  is 
embarked  on  the  same  bottom  with  yours  ; perhaps  the  community 
of  peril,  of  common  safety  or  common  wreck,  gives  a consequence 
to  my  share  of  the  risk  which  I could  not  be  vain  enough  to  give 
it,  if  it  were  not  raised  to  it  by  that  mutuality.  But  why  stoop  to 
think  at  all  of  myself,  when  I know  that  you,  gentlemen  of  the  jury, 
when  I know  that  our  country  itself  are  my  clients  on  this  day,  and 
must  abide  the  alternative  of  honor  or  of  infamy,  as  you  shall  de- 
cide. But  I will  not  despond  ; I will  not  dare  to  despond.  I have 
every  trust  and  hope  and  confidence  in  you.  And  to  that  hope  I 
will  add  my  most  fervent  prayer  to  the  God  of  all  truth  and  justice, 
so  to  raise  and  enlighten  and  fortify  your  minds,  that  you  may  so 
decide  as  to  preserve  to  yourselves  while  you  live,  the  most  delight- 
ful of  all  recollections,  that  of  acting  justly,  and  to  transmit  to  your 
children  the  most  precious  of  all  inheritances,  the  memory  of  your 
virtue. 


Baron  SMITH’S  CHARGE  TO  THE  JURY, 

In  the  Case  of  Massy  v.  The  Marquis  of  Headfort. — Dam- 
ages FOR  Criminal  Conversation. 

AT  ENNIS  ASSIZES,  COUNTY  CLARE,  IRELAND, 
FRIDAY,  JULY  27th,  1804. 


Damages  claimed,  ^40,000. — Amount  recovered,  ^10,000. 


Analysis  of 

1.  The  rules  of  law  governing  this  class  of 

actions  illustrated  and  explained. 

2.  The  nature  of  the  injury. — What  circum- 

stances must  be  considered  in  fixing 
the  amount  of  damages,  and  the  rea- 
sons therefor. 

3.  Why  connivance  destroys  the  right  of  ac- 


THE  Charge. 

tion.— Distinction  between  errors  of 
the  head  and  heart. 

4.  When  the  husband’s  conduct  will  not  de- 

feat his  right  to  recover. 

5.  Moral  considerations  bearing  upon  the 

question  of  damages. 


Mr.  Curran  did  not  finish  his  remarks  until  near  midnight,  but  as  soon  as  he 
sat  down,  notwithstanding  the  lateness  of  the  hour,  Baron  Smith  proceeded  to 
charge  the  jury.  His  observations  will  be  found  to  contain  a philosophical  and 
comprehensive  statement  of  the  legal  principles  governing  actions  for  criminal 
conversation,  expressed  in  elegant  language,  and  with  a degree  of  clearness  and 
force  indicative  of  his  learning  and  ability  as  a jurist.  The  reasons  why  certain 
facts  and  circumstances  must  be  considered  by  the  jury,  and  the  bearing  they 
should  have  on  the  result  of  their  deliberations,  are  stated  so  that  all  can  under- 
stand them.  In  this  view  his  charge  is  rendered  generally  instructive  and  inter- 
esting, because  the  legal  principles  here  enunciated  are  law  to-day  on  this  side 
of  the  Atlantic.  It  will  be  valuable  to  the  profession,  and  especially  to  students, 
since  it  embraces,  in  a remarkably  brief  space,  a thorough  abridgment  of  the 
law  on  the  subject.  Although  it  can  be  regarded  neither  as  a speech  nor  an  ar- 
gument, it  may  perhaps  be  considered  as  an  instructive  specimen  of  legal  elo- 
quence. The  Court  said: 

Gentlemen  of  the  Jury: — After  the  long  and  serious  de- 
mands which  this  trial  has  already  made  on  your  attention,  ren- 
dered the  less  irksome  by  the  brilliant  displays  of  eloquence  which 
we  have  witnessed,  I am  sorry  it  has  fallen  to  my  lot  to  trespass 
farther  on  your  patience  ; nor  shall  I do  so  in  any  greater  degree 
than  is  prescribed  to  me  by  the  duties  of  my  situation,  considering 

[708] 


BARON  SMITH’S  CHARGE  TO  THE  JURY. 


709 


the  importance  of  the  question  which  you  are  to  decide,  and  the 
large  amount  of  the  damages  which  the  plaintiff  claims. 

I shall  set  out  by  informing  you,  to  the  best  of  my  knowledge, 
of  the  legal  doctrines  which  are  applicable  to  actions  of  the  descrip- 
tion of  this  which  is  on  trial,  and  shall  then  proceed  to  sum  up  the 
evidence  which  has  been  given,  without  feeling  it  necessary  to  in- 
terrupt the  recapitulation  by  any  general  remarks.  In  short,  I shall 
leave  to  you  to  apply  to  the  facts  of  the  case  (of  which  you  are  the 
proper  judges),  those  preliminary  statements  of  the  law  which  I 
shall  have  made. 

I.  The  rules  of  law  governing  this  class  of  actions 

ILLUSTRATED  AND  EXPLAINED. 

In  the  first  place,  I feel  myself  not  only  warranted,  but  bound 
to  apprise  you  of  a principle  which  I find  laid  down  in  books  of 
high  authority  and  modern  law.  The  principle  is,  that  this  sort  of 
action  partakes  of  the  nature  of  a penal  prosecution,  and  that  large 
and  exemplary  damages  are  usually  awarded.  The  rigor  of  the 
above  doctrine,  it  must  however  be  observed,  is  regulated  and  re- 
strained by  a variety  of  qualifications,  and  appears  to  be  so  di- 
luted and  softened  that  it  amounts  at  last  to  little  more  than  this, 
that  where  the  plaintiffs  right  of  action  is  indisputable,  and  the 
injury  he  hath  sustained  is  manifestly  great,  and  where  (as  it  must 
always  be  the  case)  it  is  impossible  to  calculate,  with  exact  precis- 
ion, the  amount  in  pounds,  shillings,  and  pence,  of  the  value  of 
those  comforts  of  which  he  has  been  deprived  ; there  juries  should 
not  be  parsimonious  in  the  damages  which  they  award,  but,  on  the 
contrary,  should  be  liberal,  to  a degree  bordering  on  prodigality 
and  profusion,  for  the  benefit  of  public  example  and  the  protection 
of  public  morals.  This  part  of  the  question  may,  perhaps,  be  il- 
lustrated by  a familiar  usage  in  the  case  of  assaults.  An  assault  is 
at  once  a civil  injury  for  which  the  sufferer  has  a right  to  be  retrib- 
uted  in  damages,  and  it  is  an  offense  for  which  the  aggressor  is  liable 
to  punishment.  If  he  be  convicted  on  an  indictment  for  the  mis- 
demeanor, the  practice  is  for  the  Crown  Judge  to  ascertain  whether 
the  prosecutor  intends  to  bring  an  action.  If  not,  a punishment  is 
inflicted  commensurate  to  the  crime.  Otherwise,  a lenient  and  in 
adequate  sentence  is  pronounced.  In  this  latter  case,  the  verdict 
of  a record  jury  is,  in  some  measure,  substituted  for  the  judgment 
of  a criminal  court.  To  apply  this,  adultery  is  a crime,  not  indeed 


no 


BARON  SMITH’S  CHARGE  TO  THE  JURY 


of  temporal  cognizance,  but  punishable  by  the  spiritual  law,  which 
is  part  of  the  law  of  the  land.  But,  proceedings  of  such  a nature 
in  the  spiritual  courts,  having  become  so  unusual  as  to  be  nearly  ob- 
solete, perhaps  we  may,  by  a fair  analogy,  consider  the  transaction 
as  indirectly  subject  to  the  animadversion  of  the  jury  which  tries 
the  civil  action. 

We  must  not,  however,  carry  this  principle  too  far.  We  must 
not  forget,  first,  that  ours  is  a mere  civil  tribunal;  or,  secondly,  that 
adultery  is  no  crime  of  temporal  cognizance.  If  it  were,  that 
would  not  be  law  which  we  know  is  law.  The  law  is,  that  if  the 
jury  be  convinced,  from  the  conduct  of  the  plaintiff,  that  he  was 
consenting  to  the  infamy  of  his  wife,  they  are  bound,  in  such  cir- 
cumstances, to  find  a verdict  for  the  defendant.  Now  this  could 
never  be  the  case,  if  their  province  were  to  punish  adultery  as  a 
crime,  since  it  is  plain  that  the  guilt  of  the  defendant  would  not  be 
diminished  by  the  plaintiff’s  having  been  accessory  to  his  offense. 
Thus,  the  position  to  which  I have  adverted  can  only  admit  of  the 
interpretation  which  I have  given  it,  viz.,  that  where  it  is  (as  in 
every  such  action  it  must  be)  difficult  to  make  the  value  of  the  plaint- 
iff’s loss  a subject  of  pecuniary  calculation,  there  it  shall  be  com- 
petent to  the  jury  to  take  the  advancement  of  public  morality  into 
their  consideration.  But  they  must  make  it  a matter  of  collateral 
and  subordinate  consideration  ; they  must  recollect  that  they  are 
not  sitting  on  the  Crown  side,  but  that  their  main,  or  rather  their 
only  province  is,  to  decide  on  a violation  of  the  private  rights  of 
parties. 

2.  The  nature  of  the  injury. — What  circumstances  must 

BE  CONSIDERED  IN  FIXING  THE  AMOUNT  OF  DAMAGES, 

AND  THE  REASONS  THEREFOR. 

The  civil  injury  for  which  the  plaintiff  is  entitled  to  compensa- 
tion, is  the  wound  given  to  his  feelings  and  happiness  as  a husband, 
and,  therefore,  the  damages  should  be  proportioned  to  its  poig- 
nancy and  extent.  Accordingly,  these  are  susceptible  of  aggrava- 
tion or  mitigation,  on  various  grounds,  which  are  all,  in  fact,  merely 
detailed  applications  of  the  principle  which  I have  mentioned  last, 
namely,  that  the  degree  of  the  injury  sustained  is  the  proper  stand- 
ard for  measuring  the  amount  of  the  compensation. 

The  first  ground  which  I shall  notice,  as  one  upon  which  the 
jury  may  compute  and  justify  the  quantum  of  damages  which  they 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


711 


award,  is  the  rank  and  situation  of  the  plaintiff.  Nor  does  this 
rule  trench  on  the  impartial  character  of  our  law,  or  hold  out  dif- 
ferent measures  of  justice  to  the  rich  and  to  the  poor.  It  merely 
provides  that  the  severer  the  injury  is,  the  greater  shall  be  the  retri- 
bution. Virtue  is  far  from  being  peculiar  to  the  higher  ranks  ; but 
there  is,  perhaps,  a delicacy  of  sentiment  and  punctilio  of  honor 
engendered  by  the  refined  habits  which  belong  to  opulence  and 
distinction,  and  which  sharpen  the  sting  of  such  an  injury  as  this. 
Besides,  the  more  exalted  is  the  sphere,  the  more  are  those  who 
move  in  it  exposed  to  observation,  and  consequently  the  more 
must  such  be  injured  by  an  aggression  which  subjects  the  sufferer 
to  scorn. 

The  fortune  of  the  defendant  supplies  another  consideration,  by 
which,  estimating  damages,  a jury  might  be  guided.  Not  that  they 
ought  to  more  than  compensate  a plaintiff,  merely  because  the  de- 
fendant happened  to  be  rich.  This  would  be  to  violate  the  maxim 
which  we  have  laid  down  : that  the  damages  awarded  should  bear 
a proportion  to  the  injury  sustained.  But  a jury,  in  the  case  of  an 
indigent  defendant,  may  be  disposed  to  give  a plaintiff  less  than  the 
value  of  what  he  has  lost,  rather  than,  by  awarding  adequate  com- 
pensation, doom  him  who  is  to  make  it  to  imprisonment  for  life. 
Where  the  aggressor  is  in  affluent  circumstances,  they  will  be  re- 
lieved from  such  humane  difficulties,  and  may  find  damages  com- 
mensurate to  the  injury  which  has  been  sustained. 

It  is  also  the  duty  of  a jury  to  inquire  whether  the  criminal  in- 
tercourse has,  or  has  not,  been  the  consequence  of  a preceding  se- 
duction of  the  wife.  As  evidence  of  this,  they  should  examine  her 
previous  character  and  conduct,  and  may  found  their  estimate  of 
damages  on  such  investigation.  They  may  also  take  into  account 
the  connection  which  subsisted  between  the  parties,  and  ascertain 
how  far  it  involved  those  rights  of  hospitality  or  friendship  which 
might  justify  the  plaintiff  in  being  less  circumspect  and  suspicious, 
and  reposing  the  greater  confidence  in  the  person  who  betrayed  it. 
To  the  same  head  I would  refer  the  age  of  the  defendant,  and  the 
circumstance  of  his  being  married.  It  would  be  injurious  to  morals 
tO  discourage  that  greater  reliance  which  it  is  natural  to  place  on 
an  aged  and  married,  than  on  a younger  and  a single  man.  The 
duties  and  attachments  which  may  be  supposed  to  belong  to  the 
married  state,  and  the  bodily  infirmities,  the  extinguished  passions, 
and  confirmed  and  settled  morality  which  should  belong  to  age, 
are  so  many  securities  for  the  honor  of  a husband,  and  justify  the 


712 


BARON  SMITH’S  CHARGE  TO  THE  JURY 


confidence  which  they  inspire.  If,  however,  these  securities  should 
appear  in  proof  to  have  been  lessened  by  the  gallantries  of  a de- 
fendant, by  his  reputation  in  this  respect,  and  by  the  footing  on 
which  he  lived  with  his  own  wife  ; a jury  would  be  bound  to  throw 
these  latter  considerations  into  the  opposite  scale. 

The  injured  husband’s  obligation,  by  settlement  or  otherwise,  to 
provide  for  the  issue  of  that  marriage  whose  rights  have  been  en- 
croached on,  is  also  a fit  object  of  inquiry  for  the  jury.  Neither, 
indeed;  can  I conceive  a more  malignant  source  of  agony  to  a feel- 
ing heart ; a greater  exasperation  of  the  pain  of  that  wound  to 
whose  poignancy  the  compensation  should  be  proportioned,  than 
must  arise  from  the  perplexing  doubt  in  a supposed  father’s  mind, 
whether  the  child  who  shares  his  caresses  ; who  is  to  inherit  his 
possessions  ; for  whom  he  is  bound  to  provide  ; to  whose  advance- 
ment he  has  devoted  his  industry  and  his  talents,  has  any  natural 
and  just  claim  to  this  parental  care  ; whether  it  be  a pledge  of  his 
wife’s  past  affection  for  himself,  or  the  offspring  and  memorial  of 
her  infidelity  and  his  own  disgrace. 

If  the  complainant  has  had  criminal  connections  with  other 
women,  his  damages  shall  be  curtailed  on  this  account : both  be- 
cause these  connections  negative  the  existence  of  a high  degree  of 
matrimonial  comfort,  and  because  such  dissipation  and  neglect  is 
calculated  to  set  an  ill  example  to  the  woman  : it  tends  to  sap  her 
morals,  to  estrange  her  affections,  and  facilitate  her  seduction. 
Therefore,  though  he  have  not  actually  been  unfaithful,  yet,  by  as- 
sociating with  women  of  forfeited  and  sullied  honor,  he  may  dimin- 
ish his  claim  to  damages,  if  this  association  has  fallen  under  the  eye 
of  his  wife,  and  has  arisen,  not  from  peculiarity  of  circumstance, 
but  from  laxity  of  principle. 

Again,  in  ascertaining  the  damages  to  which  such  a plaintiff  is 
entitled,  his  having  treated  his  wife  with  tenderness  or  harshness, 
their  having  lived  on  terms  of  harmony  or  discord  (let  the  fault 
have  lain  where  it  may),  are  proper  subjects  of  attention  from  a 
jury  ; for  the  gist  of  this  action  is  the  husband’s  loss  of  the  comfort 
and  society  of  his  wife,  and  this  comfort  must  be  in  proportion  to 
their  mutual  cordiality  and  attachment.  Indeed,  where  this  affec- 
tion appears  by  the  evidence  to  have  amounted  to  that  engrossing 
and  subjugating  sentiment  called  love,  the  keenness  of  the  wound  is 
infinitely  augmented,  and  the  amount  of  the  compensation  should 
be  proportionably  increased. 


IN  MASSY  V.  THE  MARQUIS  OF  HEADFORT. 


713 


3.  Why  connivance  destroys  the  right  of  action. — Dis- 
tinction BETWEEN  ERRORS  OF  THE  HEAD 
AND  HEART. 

We  have  already  seen,  that  where  a husband  connives  at  the 
infidelity  of  his  wife,  the  elfect  shall  be,  not  only  to  diminish  his 
compensation,  but  to  destroy  his  right  of  action  altogether,  and 
disentitle  him  to  any  verdict  whatsoever ; and  this  on  one  or  both 
of  the  following  grounds  : First,  that  volenti  non  jit  injuria;  second- 
ly, that  a profligate  accomplice  in  his  wife’s  dishonor  forfeits  his 
right  to  the  protection  of  the  court.  But  there  may  be  a levity  in 
the  husband’s  behavior,  and  a culpable  inattention  to  the  conduct 
of  his  wife,  which,  not  amounting  to  a consent  of  her  infamy,  shall 
not,  indeed,  disentitle  him  to  a verdict,  but  which,  having  probably 
contributed  to  her  seduction,  shall  mitigate  the  damages  which  are 
awarded  to  him. 

It  has  been  urged  in  the  present  case,  that  if  any  such  negli- 
gence existed,  it  arose  (to  adopt  the  language  of  one  of  the  wit- 
nesses) “ not  from  the  fault  of  the  heart,  but  of  the  head.”  This 
excuse  is  founded  in  misapprehension.  If  the  inattention  arose 
from  the  fault  of  the  heart,  it  would  amount  to  connivance  and  de- 
stroy the  plaintiff’s  right  of  action  altogether.  When  the  neglect 
arises  only  from  an  error  of  the  head,  it  leaves  him  a right  of  action; 
but  it  is  evidence  admissible  in  mitigation  of  damages.  Otherwise, 
a snare  would  be  laid  for  the  defendant,  who,  judging  of  the  plaint- 
iff’s motive  by  his  conduct,  might  suppose  that  he  intended  to  con- 
nive, and  was  an  accommodating  husband,  not  from  inadvertence, 
but  design. 

4.  When  the  husband’s  conduct  will  not  defeat  his 

RIGHT  TO  RECOVER. 

At  the  same  time,  towards  entitling  a plaintiff  to  recover  largely, 
we  must  not  require  that  he  should  have  been  a Spanish  or  an 
Oriental  husband.  We  must  recollect  the  freedom  which  our  cus- 
toms allow  to  females,  and  not  lay  down  a rule  so  rigorous  as  this ; 
that  the  rights  of  every  married  man  may  be  invaded  whose  con- 
duct is  not  a system  of  suspicion  and  control,  exposing  the  jealous 
spy  to  public  derision,  and  degrading  the  woman  who  is  the  object 
of  his  distrust,  offending  her  pride,  and  alienating  her  affections. 

It  should  suffice  that  he  does  not  negligently  overlook  behavior, 
which  ought  to  excite  the  vigilance  of  a man  duly  attentive  to  his 


BARON  SMITH’S  CHARGE  TO  THE  JURY. 


m 

wife’s  honor.  The  law  invests  every  husband  with  certain  privi- 
leges and  authorities  ; and  if  he  will  not  use  them  for  his  own  pro- 
tection, he  must  forfeit  a part  of  his  claim  to  damages,  as  the  rea- 
sonable consequence  of  his  default.  It  is  the  vigilant,  not  the  in- 
dolent, whom  the  law  assists. 

5.  Moral  considerations  bearing  upon  the  question  of 

DAMAGES. 

There  are  but  two  observations  more  which  I have  to  make  : 
First,  that  if,  in  measuring  the  damages,  public  morals  and  example 
should  be  at  all  taken  into  the  question,  we  must  remember  that 
plaintiffs  as  well  as  defendants  are  subject  to  the  infirmities  and 
depravities  of  our  imperfect  nature.  We  must  therefore  take  care 
how,  by  awarding  damages  to  an  enormous  amount,  we  hold  out  a 
temptation  to  the  unprincipled  husband,  dissembling  his  own  con- 
nivance, to  wink  however  at  his  wife’s  dishonor,  when  he  finds  that 
her  infamy  will  bring  so  high  a price. 

The  second  and  last  remark  which  I have  to  trouble  you  with, 
is  this,  that  you  will  be  the  more  scrupulous  in  measuring  the  com- 
pensation which  you  award  ; because,  if  you  grant  too  much,  it  is 
improbable  that  your  error  can  ever  be  corrected,  it  being  the 
established  practice,  if  it  be  not  the  undoubted  law,  that  in  actions 
of  this  nature,  however  high  the  damages  which  are  found  may  be, 
the  verdict  cannot  be  set  aside  on  the  mere  ground  of  their  being 
excessive. 

The  Court  then  proceeded  to  recapitulate  the  evidence  as  it  ap- 
peared upon  his  notes,  without  any  further  observations  on  the  law. 


N.  B. — At  12  o’clock  the  same  night,  the  jury,  having  been  out  only  a short 
time,  returned  a verdict  for  plaintiff  for  ;({^io,ooo  damages,  and  costs.  The  se- 
quel only  proves  the  truth  of  the  old  maxim  in  regard  to  the  way  of  the  trans- 
gressor. It  seems,  when  the  Marquis  returned  to  London  with  Mrs.  Massy,  he 
settled  upon  her  an  annuity  of  ^1,000  a year.  As  Mr.  Ponsonby  sagely  remarked, 
however,  twenty-five  does  not  love  fifty.  It  was  the  old  story  of  January  and 
May.  Notwithstanding  the  wealth  and  luxury  with  which  she  was  surrounded, 
after  living  about  six  weeks  with  the  Marquis,  Mrs.  Massy  left  him,  and  went  off 
with  a young  officer  of  the  guards. 


APPENDIX 


Diagram  prepared  by  Dr.  Thomas  Spencer,  one  of  the 

EXPERTS  FOR  THE  STATE,  AND  REFERRED  TO  BY  Mr. 

Seward  in  his  address  to  the  jury. 

[See  text,  p.  184.] 

THREE  CLASSES— THIRTY-SIX  FACULTIES. 


I.  Involuntary  faculties,  ac- 
tions, or  feelings  of  mind, 


II.  Intermediate 
faculties. 


III.  Voluntary 
faculties. 


I Sensation. 


31  Conception. 


2 Attention. 


5 Thirst. 


33  Association. 


6 Memory. 


7 Love  of  Society. 

9 “ Children. 


Money. 

Combat, 

Fam^ 

Nat’jre  s Laws. 
Divine  Things. 


21  Revenge, 
23  Anger, 

25  Joy,  Hope, 
27  Fear, 


And  other  pas- 
sions, propen- 
sities and  mo- 
tives. 


8 Understanding. 

10  Comparison. 

12  Combination. 

14  Reason. 

16  Invention. 

18  Judgment. 

20  Sense  of  Justice. 

22  Pleasure  in  Right. 

24  Horror  of  Wrong  Acts. 

26  Invention,  Co-ordination. 

28  Other  Volitions,  mental  and 
moral. 


Z -i- 

Y X 

A 

D 

29  Self-Preservation. 


36  Conscience. 


30  Will. 


V Unascertained  Centre  of  Thought, 
Sensation  and  Volition. 

X Y Z Dreaming  or  Insane  Road  of 
Thought  around  Conscience  and 
Will. 


Bo 


dy. 


V A B C D Union  of  all  the  Mental 
Faculties,  as  if  by  electric  wires, 
as  one  whole. 

[717] 


718 


APPENDIX. 


REQUESTS  TO  CHARGE  AND  RULINGS  THEREON, 
IN  THE  SICKLES’  CASE. 

[See  text,  p.  327.] 

At  the  trial  of  Hon.  Daniel  E.  Sickles  the  Court  was  requested  to  in- 
struct the  jury  as  to  the  law  governing  the  case.  The  following  are  the 
instructions  presented  by  counsel,  upon  which  the  arguments  were  based, 
and  the  rulings  made  by  the  Court.  _ 

INSTRUCTIONS  SUBMITTED  FOR  THE  PROSECUTION. 

I. — If  the  jury  believe,  from  the  evidence  in  this  whole  cause,  that  the 
prisoner,  on  the  day  named  in  the  indictment,  and  in  the  county  of  Wash- 
ington aforesaid,  killed  the  said  Philip  Barton  Key,  by  discharging  at, 
against,  and  into  the  body  of  him,  the  said  Philip  Barton  Key,  a pistol  or 
pistols  loaded  with  gunpowder  and  ball,  thereby  giving  him  a mortal 
wound  or  wounds,  and  that  such  killing  was  the  willful  and  intentional 
act  of  the  prisoner,  and  was  induced  by  the  belief  that  the  said  deceased 
had  seduced  his  (the  prisoner’s)  wife,  and  on  some  day  or  days,  or  for  any 
period  definite  or  indefinite,  prior  to  the  day  of  such  killing,  had  adulter- 
ous intercourse  with  the  said  wife,  and  that  the  prisoner  was  not  provoked 
to  such  killing  by  any  assault  or  offer  of  violence  then  used  and  there  made 
by  the  deceased  upon  or  against  him,  then  such  willful  and  intentional 
killing,  if  found  by  the  jury  upon  the  facts  and  circumstances  given  in  ev- 
idence, is  murder.  But  such  killing  cannot  be  found  to  have  been  willful 
and  intentional  in  the  sense  of  this  instruction  if  it  shall  have  been  proven 
to  the  satisfaction  of  the  jury  upon  the  whole  evidence  aforesaid  that  the 
prisoner  was  in  fact  insane  at  the  time  of  such  killing. 

Ruling. — The  first  instruction  ask  for  by  the  United  States  embodies  the 
law  of  this  case  on  the  particular  branch  of  it  to  which  it  relates,  and  is  granted 
with  some  explanatory  remarks  as  to  insanity,  with  a reference  to  which  the 
prayer  closes.  A great  English  judge  has  said  on  the  trial  of  Oxford,  who  shot 
at  the  Queen  of  England,  9 Carrington  and  Paine’s  Reports,  p.  533,  “That  if 
the  prisoner  was  laboring  under  some  controlling  disease,  which  was  in  truth  the 
acting  power  within  him,  which  he  could  not  resist,  then  he  will  not  be  responsi- 
ble.” And  again:  “ The  question  is  whether  he  was  laboring  under  that  species 
of  insanity  which  satisfies  you  that  he  was  quite  unaware  of  the  nature,  character 
and  consequences  of  the  act  he  was  committing,  or  in  other  words,  whether  he 
was  under  the  influence  of  a diseased  mind  and  was  really  unconscious  at  the  time 
he  was  committing  the  act  that  it  was  a crime.  A man  is  not  to  be  excused  from 
responsibility  if  he  has  capacity  and  reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong  as  to  the  particular  act  he  is  doing,  a knowledge  and 
consciousness  that  the  act  he  is  doing  is  wrong  and  criminal  and  will  subject  him 
to  punishment.  In  order  to  be  responsible,  he  must  have  sufficient  power  of 
memory  to  recollect  the  relation  in  which  he  stands  to  others,  and  in  which  others 
stand  to  him  ; that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  jus- 
tice and  right,  injurious  to  others,  and  a violation  of  the  dictates  of  duty.  On 
the  contrary,  although  he  may  be  laboring  under  a partial  insanity,  if  he  still  un- 
derstands the  nature  and  character  of  his  act  and  its  consequences  ; if  he  has  a 
-Vtjowledge  that  it  is  wrong  and  criminal,  and  a mental  power  sufficient  to  apply 


APPENDIX. 


719 


that  knowledge  to  his  own  case,  and  to  know  that  if  he  does  the  act,  he  will  do 
wrong  and  receive  punishment,  such  partial  insanity  is  not  Sufficient  to  exempt 
him  from  responsibility  for  criminal  acts.  7 Metcalfe’s  Reports,  pp.  500-503. 

II.  — If  the  jury  believe,  from  the  evidence,  that  the  deceased  was  killed 
by  the  prisoner  by  means  of  a leaden  bullet  discharged  from  a pistol,  such 
killing  implies  malice  in  law,  and  is  murder. 

III.  — That  the  burden  of  rebutting  the  presumption  of  malice  by 
showing  circumstances  of  alleviation,  excuse  or  justification,  rests  on  the 
prisoner,  and  it  is  incumbent  on  him  to  make  out  such  circumstances  to 
the  satisfaction  of  the  jury,  unless  they  arise  out  of  the  evidence  produced 
against  him. 

Ruling. — The  second  and  third  instructions  asked  for  by  the  United  States 
are  granted. 

IV.  — That  every  person  is  presumed  to  be  of  sound  mind  until  the  con- 
trary is  proved,  and  the  burden  of  rebutting  this  presumption  rests  on  the 
prisoner,  with  the  addition  of  the  matters  set  forth  in  the  next  instruction 
(No.  V). 

Ruling. — The  fourth  instruction  asked  for  by  the  United  States  is  answered 
by  prayer  eleven  of  the  defense. 

V.  — If  the  jury  believe,  from  the  evidence,  that  the  deceased,  previous 
to  the  day  of  his  death,  had  adulterous  intercourse  with  the  wife  of  the 
prisoner ; and  further,  that  the  deceased,  on  the  day  of  his  death,  shortly 
before  the  prisoner  left  his  house,  made  signals,  inviting  to  a further  act  or 
acts  of  adultery,  which  said  signals,  or  a portion  of  them,  were  seen  by  the 
prisoner ; and,  that,  influenced  by  such  provocation,  the  prisoner  took  the 
life  of  the  deceased,  such  provocation  does  not  justify  the  act  or  reduce 
such  killing  from  murder  to  manslaughter. 

Ruling. — The  fifth  instruction  asked  for  by  the  United  States,  the  Court 
thinks,  is  the  law  and  grants  the  instruction. 


INSTRUCTIONS  SUBMITTED  FOR  THE  PRISONER. 

I.  — There  is  no  presumption  of  malice  in  this  case,  if  any  proof  of  “ al- 
leviation, excuse,  or  justification,”  arise  out  of  the  evidence  for  the  prose- 
cution. (State  V.  John,  3 Jones,  p.  366;  McDaniel  v.  State,  8 Smead’s 
and  Marshall’s,  p.  401 ; Day’s  Case,  p.  17  of  pamphlet.) 

Ruling. — There  is,  gentlemen,  a legal  presumption  of  malice  in  every  delib- 
erate killing,  and  the  burden  of  repelling  it  is  on  the  slayer,  unless  evidence  of 
alleviation,  mitigation,  excuse  or  justification,  arise  out  of  the  evidence  adduced 
against  him.  The  alleviation,  mitigation,  excuse  or  justification  must  be  such  as 
the  law  prescribes,  and  within  the  limits  already  laid  down  in  the  instructions 
given  to  you. 

II.  — The  existence  of  malice  is  not  presumable  in  this  case,  if  on  any 
rational  theory  consistent  with  all  the  evidence  the  homicide  was  either 


720 


APPENDIX. 


justifiable  or  excusable,  or  an  act  of  manslaughter.  (Same  cases  as  above 
cited;  United  States  v.  Mingo,  2 Curtis  C.  C.  R.  p.  i ; Commonwealth  v, 
York,  2 Bennett  & Heard  Leading  Criminal  Cases,  p.  505.) 

Ruling. — In  regard  to  the  second  instruction  asked  for  by  the  defense,  I 
would  say  : The  answer  to  the  first  prayer  will  be  taken  in  connection  with  his 
response  to  prayer  number  two  : “ If  upon  any  course  of  reasoning  consistent  with 
all  the  evidence,”  and  the  law  as  laid  down  to  you  by  the  Court,  and  the  rules  by 
which  it  is  ascertained  what  is  legal  provocation,  what  is  justification  or  excuse,  ' 
you  should  come  to  the  conclusion  that  there  was  such  justification  or  excuse,  or 
that  the  homicide  v^as  manslaughter,  then  the  presumption  of  malice  which  every 
killing  of  a human  being  involves,  is  met.  You  will  recollect  that  manslaughter 
is  the  killing  of  a man  without  malice. 

Ill  — If,  on  the  whole  evidence  presented  by  the  prosecution,  there  is 
any  rational  hypothesis  consistent  with  the  conclusion  that  the  homicide 
was  justifiable  or  excusable,  the  defendant  cannot  be  convicted. 

Ruling. — The  third  prayer  on  the  part  of  the  defense  is  answered  in  the 
same  manner  as  prayer  number  two. 

IV.  — If  the  jury  believe  that  Mr.  Sickles,  when  the  homicide  occurred, 
intended  to  kill  Mr.  Key,  he  cannot  be  convicted  of  manslaughter. 

Ruling. — The  fourth  prayer  the  Court  declines  to  gi-ant  ; manslaughter  may 
exist,  and  most  frequently  does  where  the  slayer  intended  to  destroy  life,  but 
under  circumstances  which  reduce  the  offense. 

V.  — It  is  for  the  jury  to  determine,  under  all  the  circumstances  of  the 
case,  whether  the  act  charged  upon  Mr.  Sickles  is  murder  or  justifiable 
homicide.  (Ryan’s  Case,  2 Wheeler’s  Criminal  Cases,  p.  54..) 

Ruling. — The  fifth  prayer  cannot  be  granted,  as  to  the  jury  belongs  the  de- 
cision of  matters  of  fact,  and  to  the  Court  the  decision  of  matters  of  law,  which 
it  is  the  duty  of  the  jury  to  receive  from  the  Court  ; and  from  the  evidence  and 
the  law  applied  to  the  facts,  it  is  the  province  and  legal  right  of  the  jury  to  return 
a verdict  of  guilty  or  not  guilty  of  murder  or  manslaughter. 

VI.  — If  the  jury  find  that  Mr.  Sickles  killed  Mr.  Key  while  the  latter 
was  in  criminal  intercourse  with  the  wife  of  the  former,  Mr.  Sickles  cannot 
be  convicted  of  either  murder  or  manslaughter. 

Ruling. — In  regard  to  the  sixth  instruction  for  the  defense,  I would  remark  : 
If  this  prayer  refers  to  actual  (existing  at  the  moment)  adulterous  intercourse 
with  the  wife  of  the  prisoner,  the  slaying  of  the  deceased  would  be  manslaughter. 
And  by  existing  adultery,  I do  not  mean  that  the  prisoner  stood  by  and  witnessed 
the  fact  of  adultery  progressing,  for  it  is  easy  to  suppose  the  actual  fact  to  be 
established  simultaneously  with  the  killing  by  other  evidence,  and  perfectly  consis- 
tent with  the  law  ; if,  for  instance,  the  husband  saw  the  adulterer  leave  the  bed 
of  the  wife,  or  shot  him  while  trying  to  escape  from  his  chamber.  If,  however, 
a day  or  half  a day  intervene  between  the  conviction  of  the  husband  of  the  guilt 
of  his  wife  and  the  deceased,  and  after  the  lapse  of  such  time  the  husband  take 
tee  life  of  the  deceased,  the  law  considers  that  it  was  done  deliberately,  and  de- 
hares that  it  was  murder.  (Jarboe’s  Case.) 

VII.  — If,  from  the  whole  evidence,  the  jury  believe  that  Mr.  Sickles 
committed  the  act,  but  at  the  time  of  doing  so  was  under  the  influence  of 


APPENDIX. 


721 


a diseased  mind,  and  was  really  unconscious  that  he  was  committing  a 
crime,  he  is  not  in  law  guilty  of  murder.  (Day’s  Case,  p.  9 of  pamphlet.) 

VIII.  — If  the  jury  believe  that  from  any  predisposing  cause  the  prison- 
er's mind  was  impaired,  and  at  the  time  of  killing  Mr.  Key  he  became  or 
was  mentally  incapable  of  governing  himself  in  reference  to  Mr.  Key,  as 
the  debauchee  of  his  wife,  and  at  the  time  of  his  committing  said  act,  was, 
by  reason  of  such  cause,  unconscious  that  he  was  committing  a crime  as 
to  said  Mr.  Key,  he  is  not  guilty  of  any  offense  whatever.  (Day’s  Case, 
p.  17  of  pamphlet.) 

Ruling. — The  seventh  and  eighth  instructions  can  be  answered  together. 
They  are  granted. 

IX.  — It  is  for  the  jury  to  say  what  was  the  state  of  the  prisoner’s  mind 
as  to  the  capacity  to  decide  upon  the  criminality  of  the  particular  act  in 
question — the  homicide — at  the  moment  it  occurred,  and  what  was  the 
condition  of  the  parties  respectively  as  to  being  armed  or  not  at  the  same 
moment.  These  are  open  questions  for  the  jury,  as  are  any  other  ques- 
tions which  may  arise  upon  the  consideration  of  the  evidence,  the  whole 
of  which  is  to  be  taken  into  view  by  the  jury.  (Jarboe’s  Case,  p.  20  of 
pamphlet.) 

Ruling. — In  reply  to  the  ninth  instruction  the  Court  responds  thus  : “ It  is  for 
the  jury  to  say  what  was  the  state  of  Mr.  Sickles’  mind  as  to  the  capacity  to  decide 
upon  the  criminality  of  the  homicide,  receiving  the  law  as  given  to  them  in  re- 
lation to  the  degree  of  insanity,  whether  it  will,  or  will  not,  excuse,  they  (the 
jury)  finding  the  fact  of  the  existence  or  non-existence  of  such  degree  of  insanity.” 
The  gist  of  this  prayer  is,  “what  was  the  condition  of  the  parties  respectively  as 
to  being  armed  or  not  at  the  same  moment.’’  So  much  of  the  instructions  I 
have  now  read,  I grant  without  qualification. 

X.  — The  law  does  not  require  that  the  insanity,  which  absolves  from 
crime,  should  exist  for  any  definite  period,  but  only  that  it  exists  at  the 
moment  when  the  act  occurred  with  which  the  accused  stands  charged. 

Ruling. — The  tenth  instruction  is  granted.  The  time  when  the  insanity  is 
to  operate  is  the  moment  when  the  crime  charged  upon  the  party  was  committed, 
if  committed  at  all. 

XI.  — If  the  jury  have  any  doubt  as  to  the  case,  either  in  reference  to 
the  homicide  or  the  question  of  sanity,  Mr.  Sickles  should  be  acquitted. 

Ruling. — This  instruction,  as  I mentioned  in  referring  to  prayer  four  of  the 
United  States,  will  be  answered  in  conjunction  with  it. 

It  does  not  appear  to  be  questioned  that  if  a doubt  is  entertained  by  the  jury 
the  prisoner  is  to  have  the  benefit  of  it.  As  to  the  sanity  or  insanity  of  the  pris- 
oner at  the  moment  of  committing  the  act  charged,  it  is  argued  by  the  United 
States  that  every  man  being  presumed  to  be  sane,  the  presumption  must  be  over- 
come by  evidence  satisfactory  to  the  jury,  that  he  was  insane  when  the  deed  was 
done. 

This  is  not  the  first  time  this  inquiry  has  engaged  my  attention.  The  point 
was  made  and  decided  at  the  June  Term,  1858.  In  the  case  of  the  United 
States  V.  Devlins,  when  the  Court  gave  the  following  opinion,  which  I read  from 
my  notes  of  the  trial.  This  prayer  is  based  on  the  idea  that  the  jury  must  be 
satisfied,  beyond  all  reasonable  doubt,  of  the  insanity  of  the  party  for  whom  the 
46 


722 


APPENDIX. 


defense  is  set  up.  Precisely  as  the  United  States  are  bound  to  prove  the  guilt 
of  a defendant  to  warrant  a conviction.  I am  well  aware,  and  it  has  appeared 
on  this  argument,  that  it  has  been  held  by  a Court  of  high  rank  and  reputation, 
that  there  must  be  a preponderance  of  evidence  in  favor  of  the  defense  of  insan- 
ity to  overcome  the  presumption  of  law  that  every  killing  is  murder ; and  that  the 
same  Court  has  said  that  if  there  is  an  equilibrium,  including,  I suppose,  the  pre- 
sumption mentioned  as  to  evidence,  the  presumption  of  the  defendant’s  inno-. 
cence  makes  the  preponderance  in  his  favor. 

Whether  a man  is  insane  or  not  is  a matter  of  fact ; what  degree  of  insanity 
will  relieve  him  from  responsibility  is  a matter  of  law,  the  jury  finding  the  fact 
of  the  degree,  too.  Under  the  instruction  of  the  Court,  murder  can  be  committed 
only  by  a sane  man.  Everybody  is  presumed  to  be  sane  who  is  charged  with  a 
crime,  but  when  evidence  is  adduced  that  a prisoner  is  insane,  and  conflicting 
testimony  makes  a question  for  the  jury,  they  are  to  decide  it  like  every  other 
matter  of  fact,  and  if  they  should  say  or  conclude  that  there  is  uncertainty,  that 
they  cannot  determine  whether  the  defendant  was  or  is  not  so  insane  as  to  pro- 
tect him,  how  can  they  render  a verdict  that  a sane  man  perpetrated  the  crime, 
and  that  no  other  can  ? 

Nor  is  this  plain  view  of  the  question  unsupported  by  authority.  In  the  case 
of  the  Queen  v.  Ley,  in  1840,  Lewins  C.  C.  p.  239,  on  a preliminary  trial  to  as- 
certain whether  a defendant  was  sufficiently  sane  to  go  before  a petit  jury  on  an 
indictment,  Hullock,  B.,  said  to  the  jury:  “If  there  be  a doubt  as  to  the  prison- 
er's sanity,  and  the  surgeon  says  it  is  doubtful,  you  cannot  say  he  is  in  a fit  state 
to  be  put  on  trial.”  This  opinion  was  approved  in  the  People  v.  Freeman, 
4 Denio’s  Reports,  p.  9.  This  is  a strong  case,  for  the  witness  did  not  say  the 
prisoner  was  insane,  but  only  that  it  was  doubtful  whether  he  was  so  or  not.  The 
humane,  and,  I will  add,  just  doctrine,  that  a reasonable  doubt  should  avail  a 
prisoner,  belongs  to  a defense  of  insanity,  as  much,  in  my  opinion,  as  to  any 
other  matter  of  fact.  I believe,  gentlemen,  that  that  answers  all  the  questions. 


REFERENCES  IN  THE  CASE  OF  THE  “SAVANNAH 
PRIVATEERS.” 

LETTER  OF  MARQUE  ISSUED  BY  JEFFERSON  DAVIS  TO  CAPTAIN 
BAKER  OF  THE  PRIVATEER  “ SAVANNAH.” 

[See  text,  p.  354.] 

“JEFFERSON  DAVIS, 

“PRESIDENT  OF  THE  CONFEDERATE  STATES  OF  AMERICA. 

“ To  all  who  shall  see  these  presents,  greeting : — Know  ye,  that  by 
virtue  of  the  power  vested  in  me  by  law,  I have  commissioned,  and  do 
hereby  commission,  have  authorized,  and  do  hereby  authorize,  the  schooner 
or  vessel  called  the  Savannah  (more  particularly  described  in  the  schedule 
hereunto  annexed),  whereof  T.  Harrison  Baker  is  commander,  to  act  as  a 
private  armed  vessel  in  the  service  of  the  Confederate  States,  on  the  high 
seas,  against  the  United  States  of  America,  their  ships,  vessels,  goods,  and 
effects,  and  those  of  her  citizen<=,  during  the  pendency  of  the  war  now 
existing  between  the  said  Confederate  States  and  the  said  United  States. 


APPENDIX. 


723 


‘‘  This  commission  to  continue  in  force  until  revoked  by  the  President 
of  the  Confederate  States  for  the  time  being. 

Schedule  of  description  of  the  vessel Name,  Schooner  Savannah; 
tonnage,  53||  tons;  armament,  one  large  pivot  gun  and  small  arms; 
number  of  crew,  thirty. 

Given  under  my  hand  and  the  seal  of  the  Confederate  States,  at 
Montgomery,  this  i8th  day  of  May,  i86i, 

“JEFFERSON  DAVIS. 

“ By  the  President — R.  Toombs,  Secretary  of  State.” 

garibaldi’s  letter,  referred  to  by  MR.  BRADY 

AND  MR.  EVARTS. 

[See  text,  pp.  358,  419.] 

“ Caprera,  Sept.  10. 

“ Dear  Sir  : I saw  Mr.  Sandford,  and  regret  to  be  obliged  to  announce 
to  you  that  I shall  not  be  able  to  go  to  the  United  States  at  present.  I do 
not  doubt  of  the  triumph  of  the  cause  of  the  Union,  and  that  shortly ; but, 
if  the  war  should  unfortunately  continue  in  your  beautiful  country,  I shall 
overcome  the  obstacles  which  detain  me  and  hasten  to  the  defense  of  a 
people  who  are  dear  to  me.  G.  GARIBALDI.” 

CITATIONS,  FROM  VATTEL’s  LAW  OF  NATURE  AND  NATIONS, 

BY  MR.  JAMES  T.  BRADY. 

[See  text,  p.  365.] 

“ Sec.  287.  It  is  a question  very  much  debated  whether  a sovereign  is 
bound  to  observe  the  common  laws  of  war  towards  rebellious  subjects 
who  have  openly  taken  up  arms  against  him.  A flatterer,  or  a Prince  of 
cruel  and  arbitrary  disposition,  will  immediately  pronounce  that  the  laws  of 
war  were  not  made  for  rebels,  for  whom  no  punishment  can  be  too  severe. 
Let  us  proceed  more  soberly,  and  reason  from  the  incontestible  principles 
above  laid  down.” 

“ Sec.  292.  When  a party  is  formed  in  a State  who  no  longer  obey  the 
sovereign,  and  are  possessed  of  sufficient  strength  to  oppose  him  ; or  when, 
in  a Republic,  the  nation  is  divided  into  two  opposite  factions,  and  both 
sides  take  up  arms,  this  is  called  a civil  war.  Some  writers  confine  this 
term  to  a just  insurrection  of  the  subjects  against  their  sovereign  to  dis- 
tinguish that  lawful  resistance  from  rebellion,  which  is  an  open  and  unjust 
resistance.  But  what  application  will  they  give  to  a war  which  arises  in  a 
Republic,  torn  by  two  factions,  or,  in  a Monarch)%  between  two  competi- 
tors for  the  Crown  } Custom  appropriates  the  term  of  civil  war  to  every 
war  between  the  members  of  one  and  the  same  political  society.  If  it  be 
between  part  of  the  citizens  on  the  one  side,  and  the  sovereign  with  those 
who  continue  in  obedience  to  him  on  the  other,  provided  the  malcontents 


724 


APPENDIX. 


have  any  reason  for  taking  up  arms,  nothing  further  is  required  to  entitle 
such  disturbance  to  the  name  of  civil  war,  and  not  that  of  rebellion.  This 
latter  term  is  applied  only  to  such  an  insurrection  against  lawful  authority 
as  is  void  of  all  appearance  of  justice.  The  sovereign,  indeed,  never  fails 
to  bestow  the  application  of  rebels  on  all  such  of  his  subjects  as  openly 
resist  him ; but  when  the  latter  have  acquired  sufficient  strength  to  give 
him  effectual  opposition,  and  to  oblige  him  to  carry  on  the  war  against 
them  according  to  the  established  rules,  he  must  necessarily  submit  to  thi 
use  of  the  term  civil  war. 

“ Sec.  293,  It  is  foreign  to  our  purpose,  in  this  place,  to  weigh  the  rea- 
sons which  may  authorize  and  justify  a civil  war;  we  have  elsewhere 
treated  of  the  cases  wherein  subjects  may  resist  the  sovereign.  (Book  i, 
cap.  4.)  Setting,  therefore,  the  justice  of  the  cause  wholly  out  of  the 
question,  it  only  remains  for  us  to  consider  the  maxims  which  ought  to  be 
observed  in  a civil  war,  and  to  examine  whether  the  sovereign,  in  particu- 
lar, is  on  such  an  occasion  bound  to  conform  to  the  established  laws  of 
war. 

‘‘  A civil  war  breaks  the  bonds  of  society  and  Government,  or  at  least 
suspends  their  force  and  effect ; it  produces  in  the  nation  two  independent 
parties,  who  consider  each  other  as  enemies,  and  acknowledge  no  common 
judge.  Those  two  parties,  therefore,  must  necessarily  be  considered  as 
thenceforward  constituting,  at  least  for  a time,  two  separate  bodies— two 
distinct  societies.  Though  one  of  the  parties  may  have  been  to  blame  in 
breaking  the  unity  of  the  State,  and  resisting  the  lawful  authority,  they 
are  not  the  less  divided  in  fact.  Besides,  who  shall  judge  them  } Who 
should  pronounce  on  which  side  the  right  or  the  wrong  lies  ? On  each  they 
have  no  common  superior.  They  stand,  therefore,  in  precisely  the  same 
predicament  as  two  nations  who  engage  in  a contest,  and,  being  unable  to 
come  to  an  agreement,  have  recourse  to  arms. 

“ This  being  the  case,  it  is  very  evident  that  the  common  laws  of  war 
— those  maxims  of  humanity,  moderation  and  honor,  which  we  have 
already  detailed  in  the  course  of  this  work — ought  to  be  observed  by  both 
parties  in  every  civil  war.  For  the  same  reasons  which  render  the  observ- 
ance of  those  maxims  a matter  of  obligation  between  State  and  State,  it 
becomes  equally  and  even  more  necessary  in  the  unhappy  circumstances  of 
two  incensed  parties  lacerating  their  common  country.  Should  the  sover- 
eign conceive  he  has  a right  to  hang  up  his  prisoners  as  rebels,  the  oppo- 
site party  will  make  reprisals ; if  he  does  not  religiously  observe  the  capitu- 
lations, and  all  other  conventions  made  with  his  enemies,  they  will  no 
longer  rely  on  his  word  ; should  he  burn  and  ravage,  they  will  follow  his 
example ; the  war  will  become  cruel,  horrible,  and  every  day  more  destruc- 
tive to  the  nation.” 

After  noticing  the  cases  of  the  Due  de  Montpensier  and  Baron  des 
Adrets,  he  continues  : 

“ At  length  it  became  necessary  to  relinquish  those  pretensions  tn 


APPENDIX. 


725 


judicial  authority  over  men  who  proved  themselves  capable  of  supporting 
their  cause  by  force  of  arms,  and  to  treat  them  not  as  criminals,  but  as 
enemies.  Even  the  troops  have  often  refused  to  serve  in  a war  wherein 
the  Prince  exposed  them  to  cruel  reprisals.  Officers  who  had  the  highest 
sense  of  honor,  though  ready  to  shed  their  blood  on  the  field  of  battle  for 
his  service,  have  not  thought  it  any  part  of  their  duty  to  run  the  hazard  oi 
an  ignominious  death.  Whenever,  therefore,  a numerous  body  of  men 
think  they  have  a right  to  resist  the  sovereign,  and  feel  themselves  in  a 
condition  to  appeal  to  the  sword,  the  war  ought  to  be  carried  on  by  the 
contending  parties  in  the  same  manner  as  by  two  different  nations,  and 
they  ought  to  leave  open  the  same  means  for  preventing  its  being  carried 
into  outrageous  extremities  and  for  the  restoration  of  peace.” 

AI53TRACT  OF  DOCUMENTARY  EVIDENCE  OFFERED  BY  DEFEND- 
ANTS IN  THE  CASE  OF  THE  “ SAVANNAH  PRIVATEERS.” 

[See  text,  p.  367.] 

Mr.  Brady,  for  the  defense,  put  in  evidence  the  following  documents: 

1.  Preliminary  Chart  of  Part  of  the  sea-coast  of  Virginia,  and  Entrance 
to  Chesapeake  Bay. — Coast  Survey  Work,  dated  1855. 

2.  The  Constitution  of  Virginia,  adopted  June  29,  1776.  It  refers  only 
to  the  western  and  northern  boundaries  of  Virginia — Art.  21 — but  recog- 
nizes the  Charter  of  1609.  That  charter  (Hemmings’  Statutes,  ist  vol. 
p.  88)  gives  to  Virginia  jurisdiction  over  all  havens  and  ports,  and  all 
islands  lying  within  100  miles  of  the  shores. 

3.  The  Act  to  Ratify  the  Compact  between  Maryland  and  Virginia, 
passed  January  3,  1786— to  be  found  in  the  Revised  Code  of  Virginia,  page 
53.  It  makes  Chesapeake  Bay,  from  the  capes,  entirely  in  Virginia. 

Mr.  Sullivan  also  put  in  evidence,  from  Putnam’s  Rebellion  Record, 
the  following  documents: 

1.  Proclamation  of  the  President  of  the  United  States,  of  15th  April, 
1861. 

2.  Proclamation  of  the  President,  of  19th  April,  1861,  declaring  a 
blockade. 

3.  Proclamation  of  27th  April,  1861,  extending  the  blockade  to  the 
coasts  of  Virginia  and  North  Carolina. 

4.  Proclamation  of  May  3d,  for  an  additional  military  force  of  42,034 
men,  and  the  increase  of  the  regular  army  and  navy. 

5.  The  Secession  Ordinance  of  South  Carolina,  dated  Dec.  20,  i860. 

Mr.  Sullivan  read  in  evidence  from  page  10  of  Putnam’s  Rebellion 
Record : 

Letter  from  Secretary  of  War,  John  B Floyd,  to  President  Buchanan, 
dated  December  29,  i860. 

President  Buchanan’s  reply,  dated  December  29,  1 860. 

Also,  from  page  1 1 of  Rebellion  Record : 


726 


APPENDIX. 


The  Correspondence  between  the  South  Carolina  Commissioners  and 
the  President  of  the  United  States. 

Also  referred  to  page  19  of  Rebellion  Record,  for  the  Correspondence 
between  Major  Anderson  and  Governor  Pickens,  with  reference  to  firing 
on  the  Star  of  the  West. 

Read  Major  Anderson’s  first  letter  (without  date),  copied  from  Charles- 
ton Courier,  of  Jan.  10,  1861. 

Governor  Pickens’  reply,  and  second  communication  from  Major  An- 
derson. 

Also,  from  page  29  of  Rebellion  Record,  containing  the  sections  of  the 
Constitution  of  the  Confederate  States  which  differ  from  the  Constitution 
of  the  United  States. 

Also,  from  page  31  of  Rebellion  Record:  Inaugural  of  Jefferson  Davis, 
as  President  of  the  Confederate  States. 

Also,  page  36  of  Rebellion  Record : Inaugural  of  Abraham  Lincoln, 
President  of  the  United  States. 

Also,  page  6i  of  Rebellion  Record : The  President’s  Speech  to  the 
Virginia  Commissioners. 

Also,  page  71  of  Rebellion  Record:  Proclamation  of  Jefferson  Davis, 
with  reference  to  the  letters  of  marque,  dated  17th  April,  1861. 

Also,  page  195  of  Rebellion  Record:  An  Act  recognizing  a state  of 
war,  by  the  Confederate  Congress, — published  May  6,  1861. 

Mr.  Lord  read  from  pages  17,  19,  and  20  of  Diary  of  Rebellion 
Record,  to  give  the  date  of  certain  events: 


1861,  February  8. 

“ 18. 

“ 21. 

“ 21. 


March  19. 
April  8. 


The  Constitution  of  the  Confederate  States  adopted. 

Jefferson  Davis  inaugurated  President. 

The  President  of  the  Southern  Confederacy  nominates  mem- 
bers of  his  Cabinet. 

Congress  at  Montgomery  passed  an  Act  declaring  the  estab- 
lishment of  free  navigation  of  the  Mississippi. 

Confederates  passed  an  Act  for  organizing  the  Confederate 
States. 

South  Carolina  Convention  ratified  the  Constitution  of  the 
Confederate  States  by  a vote  of  1 19  to  16. 


CITATIONS  ON  MILITARY  LAW  BY  Mr.  WILLIAM  A. 

BEACH. 

[See  text,  p.  455.] 

A Military  Crime  must  be  imputed  in  the  Charges  and 
Specifications. 

“ The  jurisdiction  of  court-martial  is  special  and  limited,  arising  from 
the  cognizance  of  crimes  as  committed  by  individuals,  that  is,  by  indi- 
viduals subject  to  military  law;  and  the  crimes  or  acts  are  such  as  are 


APPENDIX. 


727 


repugnant  to  military  discipline,  and  are  pointed  out  by  law,  by  the  general 
regulations  for  the  army,  and  by  the  custom  of  war. 

“ Those  acts  defined  by  law  are  sufficiently  distinct  for  the  observation 
of  members  of  military  courts,  whereby  they  may  regulate  their  proceed- 
ings, and  no  embarrassment  can  arise  in  regard  to  making  them  the  sub- 
ject of  military  investigation. 

“ The  general  regulations  for  the  army  are  a permanent  body  of  rules 
for  the  better  ordering  and  methodical  arrangement  of  subjects  of  military 
concernment,  and  have  a view  to  establish  uniformity  of  the  affairs  of  the 
army  by  determining,  to  a greater  or  less  degree,  the  requisite  minutiae  and 
detail.  Their  character,  while  mandatory,  is  also  ministerial,  and,  proceed- 
ing from  the  President  of  the  United  States,  the  highest  military  authority, 
claims  the  utmost  respect,  observance  and  obedience.  It  is  true,  they  are 
not  in  the  nature  of  a subordinate  legislation  to  determine  or  to  define 
offenses  and  affix  penalties,  for  that  belongs  to  Congress  only,  and  such  as 
are  set  forth  in  the  rules  and  articles  of  war;  but  they  are  of  the  nature 
and  character  of  orders,  pertaining  to  the  executive  and  administrative 
branches  of  the  service ; and  although  they  denounce  no  punishment  in 
terms,  yet  the  neglect  or  positive  breaches  of  their  requirements  are  im- 
mediately referable  to  the  established  laws  for  the  enforcement  of  disci- 
pline, to  which  they  appeal  for  an  appropriate  sanction. 

“ The  custom  of  war  is  the  unwritten  or  common  law  of  the  army.  In 
order  to  apply  it  to  any  particular  case,  it  must  be  certain  and  well  defined, 
and  clearly  not  opposed  to  any  law  or  regulation.  The  custom  of  war  is 
rather  sought  for  as  explanatory  of  some  doubtful  question  in  which,  with- 
out its  aid,  a decision  might  become  certain,  then  as  a source  of  authority 
by  itself.  It  must  be  understood,  too,  that  a custom  to  have  any  validity, 
besides  having  the  quotations  above  mentioned,  must  also  be  a custom  of 
the  army  for  the  government  of  which  it  is  intended  to  be  applied.  To 
resort  to  a foreign  military  service,  and  draw  thence  customs  of  war  which 
are  genuine  and  acknowledged  in  such  service,  might  be  very  illegal  when 
introduced  into  our  own,  as  the  circumstances  or  conditions  which  called 
them  into  existence,  and  continued  them  in  being,  in  the  one  might  be  en- 
tirely wanting  in  the  other.  It  is  an  authority  which  ought  to  be  well 
scrutinized  before  allowed  to  have  a determining  influence.  The  customs 
and  usages  of  an  army  are,  when  considered  in  contradistinction  to  the 
positive  laws  and  regulations  for  the  same,  generally  pretty  well  under- 
stood, and  when  adduced,  as  illustrative  of  the  forms  adhered  to,  or  the 
interpretation  of  acts,  should  have  the  certainty  of  established  fact. 

“ In  concluding  this  chapter,  it  is  proper  to  observe,  that  it  is  a principle 
by  which  the  power  and  jurisdiction  of  courts-martial  are  restrained,  that 
they  cannot  take  cognizance  of  any  acts  or  offenses  which  are  not  conceded 
by  statute,  or  the  custom  of  war,  as  specific  crimes  against  the  military 
State,  or  as  disorders  and  neglects  tending  to  the  prejudice  of  discipline 
and  good  order.” — De  Hart  on  Courts-martial,  pp.  298,  299. 


728 


APPENDIX. 


The  Specifications  must  embrace  the  Charge  and  sustain 
THE  Offense. 

[See  text,  p.  456.] 

“ The  fact  or  facts  ought  to  be  very  distinctly  specified  or  alleged,  in 
such  manner  that  neither  the  prisoner  or  court  can  have  any  difficulty  in 
knowing  what  is  the  precise  object  of  investigation.  Facts  distinct  in  their 
nature  are  not  to  be  included  in  the  same  specifications.  Every  fact  in  the 
specification  should  be  such  as,  if  proved,  would  convict  the  prisoner 
of  the  charge,  or  at  least  might  convict  him  of  it.  Any  allegation  in  the 
specification  which,  if  proved,  could  not  convict  the  prisoner  of  any  degree 
of  the  crime  charged,  is  irrelevant  and  should  be  rejected.  Its  retention 
will  not  vitiate  the  charge,  but  it  is  surplusage,  and  no  evidence  should 
be  received  thereon.  It  is  always  better  to  reject  such  matter  at  first. 
This  rule  is  applicable,  though  the  facts  irrelevant  to  the  particular  charge 
do  themselves  amount  to  a distinct  crime. 

“ If  all  the  facts  stated  in  the  specification  would  not,  if  proved,  amount 
to  the  crime  stated  in  the  charge,  both  charge  and  specification  must  be 
rejected;  for  the  court  is  to  pronounce  only  in  the  crime  named  in  the 
charge,  and  no  other. 

“ From  the  preceding  it  results  that  the  court-martial  may  and  ought 
to  refuse  to  try  on  accusations, — 4th,  when  the  specification  alleges  only 
certain  acts,  either  not  at  all  criminal,  or  not  constituting  any  degree  of  the 
crime  stated  in  the  charge.” — O' Br ten  on  American  Military  Law, 

234,  235. 


THE  WAR  AMENDMENTS  TO  THE  CONSTITUTION. 

[See  text,  p.  518.] 

ARTICLE  XIII. 

Sec.  I.  Neither  slavery  nor  involuntary  servitude,  except  as  a punish- 
ment for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their  jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 


ARTICLE  XIV. 

Sec.  I.  All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States,  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction,  the  equal 
protection  of  the  laws. 


APPENDIX. 


729 


Sec.  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of  per- 
sons in  each  State,  excluding  Indians  not  taxed.  But  when  the  right  to 
vote  at  any  election  for  choice  of  electors  for  president  and  vice-president 
of  the  United  States,  representatives  in  congress,  the  executive  and  judicial 
officers  of  a State,  or  the  members  of  the  legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  State. 

Sec.  3.  No  person  shall  be  a senator,  or  representative  in  congress,  or 
elector  of  president  and  vice-president,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who,  having  previously  taken 
an  oath  as  a member  of  congress,  or  as  an  officer  of  the  United  States,  or  as 
a member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall  have  en- 
gaged in  insurrection  or  rebellion  against  the  same,  or  given  aid  and  com- 
fort to  the  enemies  thereof ; but  congress  may,  by  a vote  of  two-thirds  of 
each  house,  remove  such  disability. 

Sec.  4 The  validity  of  the  public  debt  of  the  United  States  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave  ; but  all  such 
debts,  obligations,  and  claims,  shall  be  held  illegal  and  void. 

Sec  5.  The  congress  shall  have  power  to  enforce,  by  appropriate  legis- 
ation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Sec.  I.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Sec.  2.  The  congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 


730 


APPENDIX. 


ODE  AND  VERSES  REFERRED  TO  BY  MR.  MACKIN- 
TOSH  IN  HIS  DEFENSE  OF  PELTIER. 

[See  text,  pp.  568,  591,  592.] 

That  the  reader  may  thoroughly  comprehend  the  argument  of  Mr. 
Mackintosh,  we  present  the  portions  of  the  first  two  publications  set  out  in 
the  pleadings,  for  the  Crown,  and  the  translation  as  they  appear  upon  the 
record,  in  the  language  of  the  indictment.  The  allegation  is  that  the  de^ 
fendant,  on  the  i6th  of  August,  1802,  “ within  the  liberty  of  Westminster, 
in  the  county  of  Middlesex,  unlawfully  and  maliciously  did  print  and  pub- 
lish, and  cause  and  procure  to  be  printed  and  published,  a most  slandalous 
and  malicious  libel,  in  the  French  language,  of  and  concerning  the  said 
Napoleon  BuonapartS,  that  is  to  say,  one  part  thereof  to  the  tenor  follow- 
ing, to  wit : 

“Le  18  Brumaire  an  VIII. 

‘‘  Ode  attribuee  a Chenier. 

“ Quelles  tempetes  effroyables 
Grondent  sur  les  flots  d^chain6s 
Dieux ! quels  torrents  epouvantables 
Roulent  ces  rocs  deracin§s  } 

Les  fleuves  n’ont  plus  de  rivages 
Couvert  d’^cume  et  de  naufrages 
L’oc^an  mugit  dans  les  airs 
Sur  ses  fondements  ebranlee 
La  terre  va-t-elle  ecroul^e 
Se  detacher  de  I’univers  } 

“ Ah  plutot  pour  se  faire  absoudrel 
D’une  trop  longue  impunite 
Les  cieux  peut-etre  avec  la  foudre 
Vont  proteger  la  Liberte 
Dieux  du  peuple  que  Ton  opprime 
Vengez  cette  auguste  victime 
De  I’audacieux  attentat 
Qu’aux  jours  malheureux  de  Brumaire 
Les  lois  ont  dans  leur  sanctuaire 
Vu  consommer  par  un  soldat 

“ Trop  vain  espoir  de  la  vengeance ! 

Peoples  livres  aux  oppresseurs 
N’auriez  vous  dans  votre  souffrance 
Que  VOS  bras  pour  liberateurs  } 

Le  del  est  aveugle  au  barbare 
Et  lorsque  sa  foudre  s’6gare 
Portee  au  hasard  sur  les  vents 
Qu’elle  devaste  les  campagnes 
Ou  frappe  d’arides  montagnes 
Elle  respecte  les  tirans 

“ Jouets  des  flots  et  des  orages 
Voyez  ces  utiles  vaisseaux 
De  leurs  debris  couvrir  vos  plages 


APPENDIX. 


731 


Ou  s’abymer  au  fond  des  eaux 
Tandis  que  la  nef  criminelle 
Qui  porte  ce  Corse  rebelle 
Deserteur  des  champs  Africains 
Tranquillement  vogue  sur  I’onde 
Et  de  Cesar  annonce  au  monde 
Et  la  fortune  et  les  desseins 

“De  la  France,  6 honte  gternelle 
Cesar  au  bord  du  Rubicon 
A contre  lui  dans  sa  querelle 
Le  Senat  Pompee  et  Caton 
Et  dans  les  plaines  de  Pharsale 
Si  la  fortune  est  inegale 
S’il  te  faut  ceder  aux  destins 
Rome  dans  ce  revers  funeste 
Pour  te  venger  au  moins  il  reste 
Un  poignard  aux  derniers  Romains 

‘‘  Mais  sous  quelles  viles  entraves 
A succombe  notre  vertu  ! 

Quoi ! I'univers  nous  voit  esclaves 
Sans  que  nous  ayons  combattu  ! 

Au  sein  d’un  s^nat  parricide 
La  noire  trahison  preside 
Fiere  encore  de  nos  revers  ’ 

Le  pouvoir  sans  appui  sans  force 
Tombe  a sa  voix  et  c’est  d’un  Corse 
Que  le  Fran^ais  revolt  des  fers? 

“And  in  another  part  thereof  to  the  tenor  following,  that  is  to  say : 

“ Deja  dans  sa  rage  insolente 

Le  despote  ose  menacer 

Tel  des  dots  la  vague  ecumante 
Se  brise  contre  le  rocher 
Est-ce  pour  vous  donner  un  maitre 
Est-ce  pour  couronner  un  traitre 
Que  la  France  a puni  ses  rois? 

Non  non  I’ambition  coupable 
Saura  qu’il  n’est  d’inviolable 
Que  les  droits  du  peuple  et  ses  lois. 

And  in  another  part  thereof  to  the  tenor  following,  that  is  to  say : 

*‘Vcsu  d’un  bon  Patriote  au  14  Juillet^  1802. 

“ Quel  fortune  a fait  le  fils  de  L^titie  ! 

Corse  il  devient  Fran^-ais  Sa  nouvelle  partie 
L’adopte  le  nourrit  au  rang  de  ses  enfants 
Et  deja  lui  promet  les  destins  les  plus  grands ! 

Un  orage  survient  sous  I’effort  des  tempetes 
L’etat  est  renverse  les  plus  augustes  tetes 
Tombent  tout  est  brise  le  Franf;ais  malheureux 
Regrette  en  soupirant  son  erreur  et  ses  voeux ! 

Napoleon  para  t ! de  victoire  en  victoire 
Il  atteint  en  volant  au  fa  te  de  la  gloire ! 


732 


APPENDIX. 


L’Orient,  POccident  temoins  de  ses  exploits 
Par  lui  sont  terrasses  et  regoivent  ses  loix ! 

Le  Nil  avail  fremi  mais  le  sort  qui  I’entraine 
Rappelle  son  vainqueur  aux  rives  de  la  Seine 
Cinq  chefs  ou  cinq  tyrans  partageaient  le  pouvoir 
II  arrache  a leur  mains  le  sceptre  et  I’encensoir 
Le  voila  done  assis  on  s’elevait  le  trone ! 

Que  faut-il  a ses  voeux?  un  sceptre.?  une  couronne? 

Consul  il  regie  tout  il  fait  defait  des  rois 

Peu  soigneux  d’etre  aime  la  terreur  fait  ses  droits  ! 

Sur  un  peuple  avili  jusqu’au  rang  des  esclaves 
Il  regne-il  est  despote  on  baise  ses  entraves 
Qu’a-i-il  a redouter.?  Il  a dicte  la  paix 
Des  rois  sont  a ses  pieds,  mendiant  ses  bienfaits? 

D’assurer  en  ses  mains  l’autorit§  supreme 
On  lui  porte  les  voeux ! Les  Fran^ais  des  rois  meme 
A le  f61iciter  s’empressent  humblement 
Et  voudraient  en  sujets  lui  preter  le  serment  . . . 

Il  est  proclame  chef  et  consul  pour  la  vie  . . . 

Pour  moi  loin  qu’a  son  sort  je  porte  quelqu’envie 
Qu’il  nomme  j’y  consens  son  digne  successeur 
Sur  le  pavois  porte  qu’on  I’^lise  e7npereur 
Enfin  et  Romulus  nous  rappelle  la  chose 
Je  fais  voeu  ....  des  demain  qu’il  ait  I’apothgose ! AMEN. 

“Which  said  scandalous  and  malicious  words  in  the  French  language, 
first  above-mentioned  and  set  forth,  being  translated  into  the  English  lan- 
guage, were  and  are  of  the  same  signification  and  meaning  as  these  En- 
glish words  following,  that  is  to  say  : 

“ What  frightful  tempests  growl  on  the  unchained  waves  ? Gods,  what 
dreadful  torrents  roll  these  uprooted  rocks .?  The  rivers  have  no  longer 
any  banks.  The  ocean,  covered  with  foam  and  shipwrecks,  bellows  in  the 
air.  Shaken  at  its  foundation,  is  the  earth  fallen — going  to  detach  itself 
from  the  universe  ! Ah  ! rather  to  obtain  their  acquittal  for  too  long  im- 
punity, the  heavens,  perhaps,  are  going  to  protect  liberty  with  the  thunder. 
Gods  of  an  oppressed  people  ! Avenge  this  august  victim  of  the  audacious 
attempt  which  on  the  unhappy  days  of  Brumaire,  the  laws,  in  their  sanc- 
tuary, saw  completed  by  a soldier!  (meaning  the  said  Napoleon  Buona- 
parte). Too  vain  hope  of  vengeance  ! Nations  given  up  to  oppressors, 
have  you  in  your  sufferings  only  your  arms  for  deliverers.?  The  heaven  is 
blind  or  cruel,  and  when  its  thunder  flies,  carried  by  chance  upon  the 
winds,  whether  it  lays  waste  the  plains  or  strike  the  arid  mountains,  it  re- 
spects tyrants.  Behold  those  useful  vessels,  the  sport  of  the  waves  an  i 
storms,  cover  your  coasts  with  their  wrecks  or  sink  to  the  bottom  of  the 
waters,  while  the  guilty  ship  that  carries  that  rebel  Corsican  (meaning  the 
said  Napoleon  Buonaparte)  deserter  of  the  plains  of  Africa,  sails  tran- 
quilly on  the  wave,  and  announces  to  the  world  the  fortune  and  the  designs 
of  Caesar.  Oh,  eternal  disgrace  of  France!  Caesar,  on  the  bank  of  the 
Rubicon,  has  against  him  in  his  quarrel  the  senate,  Pompey  and  Cato,  and 
in  the  plains  of  Pharsalia,  if  fortune  is  unequal,  if  you  must  yield  to  the 
destinies  of  Rome,  in  this  sad  reverse,  at  least,  there  remains  to  avenge 
you,  a poignard  among  the  last  Romans.  But,  under  what  vile  fetters  has 
our  valour  fallen  ! What ! the  universe  beholds  us  slaves  without  our  hav- 
ing combatted  ! In  the  bosom  of  a parricide  senate  black  tr^-asen  presideSj 


APPENDIX. 


733 


still  fierce  at  our  misfortunes ; power  without  support  and  without  force 
falls  at  its  voice,  and  it  is  from  a Corsican  (meaning  the  said  Napoleon 
Buonaparte;  that  the  Frenchman  receives  his  chains. 

“And  which  said  scandalous  and  malicious  words,  in  the  French  lan- 
guage, secondly  above-mentioned  and  set  forth,  being  translated  into  the 
English  language,  were  and  are  of  the  same  signification  and  meaning  as 
these  English  words  following,  that  is  to  say : 

“ Already,  in  his  insolent  rage,  the  despot  (meaning  the  said  Napoleon 
Buonaparte)  dares  to  menace;  but  the  foaming  wave  of  the  sea  breaks 
itself  against  the  rock.  Is  it  to  give  you  a master — is  it  to  crown  a traitor 
(meaning  the  said  Napoleon  Buonaparte  (that  France  has  punished  her 
kings?  No,  no;  guilty  ambition  shall  know  that  there  is  nothing  inviola- 
ble but  the  rights  of  the  people  and  their  laws. 

“And  which  said  scandalous  and  malicious  matters  in  the  French  lan- 
guage last  above-mentioned  and  set  forth,  being  translated  into  English, 
are  as  follows,  that  is  to  say : 

“ of  a good  patriot  on  the  fourteenth  day  of  July,  in  the  year  of 

our  Lord  oiie  thousand  eight  hundred  and  two. 

“ What  fortune  has  the  son  of  Laetitia  (meaning  the  said  Napoleon 
Buonaparte)  arrived  at!  A Corsican,  he  becomes  a P'renchman.  His 
new  country  adopts  him,  nourishes  him  in  the  rank  of  its  children,  and 
already  promises  him  the  greatest  destinies.  A storm  arises.  By  the  force 
of  the  tempests  the  State  is  overturned ; the  most  noble  persons  fall ; every- 
thing is  broken.  Ihe  unhappy  Frenchman  regrets  with  sighs  his  error 
and  his  wishes  Napoleon  appears  flying  from  victory  to  victory.  He 
reaches  the  summit  of  glory.  The  east,  the  west,  witnesses  of  his  exploits 
are  vanquished  by  him  and  receive  his  laws.  The  Nile  had  shuddered,  but 
the  lot  that  forces  him  on  recalls  his  vanquisher  to  the  banks  of  the  Seine. 
Five  chiefs  or  five  tyrants  shared  the  power.  He  forces  from  their  hands 
the  sceptre  and  the  censer.  Behold  him,  then,  seated  where  the  throne 
was  raised.  What  is  wanting  to  its  wishes  ? A sceptre  ? a crown  ? Con- 
sul, he  governs  all ; he  makes  and  unmakes  kings.  Little  careful  to  be  be- 
loved, terror  establishes  his  rights  over  a people  degraded  even  to  the  rank 
of  slav^es.  He  reigns;  he  is  despotic;  they  kiss  their  chains.  What  has 
he  to  dread  ? He  has  dictated  peace.  Kings  are  at  his  feet  begging  his 
favors.  He  is  desired  to  secure  the  supreme  authority  in  his  hands  I The 
French,  nay,  kings  themselves,  hasten  to  congratulate  him,  and  would  take 
the  oath  to  him  like  subjects.  He  is  proclaimed  chief  and  consul  for  life. 
As  for  me,  far  from  envying  his  lot,  let  him  name,  I consent  to  it,  his 
worthy  successor.  Carried  on  the  shield,  let  him  be  elected  emperor ! 
Finally  (and  Romulus  recalls  the  thing  to  mind),  I wish  that  on  the  mor- 
row he  may  have  his  apotheosis.  Amen. 

“To  the  great  scandal,  disgrace  and  danger  of  the  said  Napoleon  Buona- 
parte, to  the  great  danger  of  creating  discord  between  our  said  lord  the 
king  and  his  subjects  and  the  said  Napoleon  Buonaparte,  the  French  re- 
public and  the  citizens  of  the  said  republic,  in  contempt  of  our  said  lord 
the  king  and  his  law,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace  of  our  said  lord  the  king,  his  crown  and 
dignity.’' 


Y34 


APPENDIX. 


PASSAGES  OF  THE  ODE  TRANSLATED  IN  VERSE,  AND 

CITED,  BY  MR.  MACKINTOSH. 

[ See  Text  p.  592.  ] 

C’est  par  les  lois  que  I’Angleterrc 
Affermit  sa  prosperity : 

La,  sous  leur  abri  tutelaire. 

On  peut  braver  la  royaute ; 

La,  devant  leur  toute  puissance, 

Et  le  pouvoir  et  la  naissancc 
Baissent  un  front  religieux  ; 

La,  I’homme  pense  sans  contrainte, 

Et,  satisfait,  jouit  sans  crainte 
Des  memes  droits  que  ses  ayeux. 

Du  pouvoir  censeur  n^cessaire, 

L’Anglais  n’en  peut  craindre  les  coups; 

Des  lois  jamais  sur  Varbitraire 
II  n’invoque  en  vain  le  courroux. 

Fiere  de  sa  charte  sacr^e, 

De  gloire  et  de  biens  entouree, 

Albion  regne  sur  les  mers  ; 

Elle  cherit  sa  destinee, 

Et  la  Tamise  fortun6e 
Fixe  les  yeux  de  I’univers. 

Cependant  encore  affligee 
Par  I’odieuse  herydite, 

Londres,  de  titres  surchargee, 

Londres  n’a  pas  Tegality  ; 

Mais  son  rempart  impynetrable, 

Est  dans  le  pouvoir  responsable 
De  la  volonty  de  ses  Rois  : 

Tandis  que  la  main  despotique 
Qui  conduit  notre  Rypublique 
Est  plus  puissante  que  Jes  lois. 


INDEX. 


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INDEX 


A 

Addison,  supposed  dialogue  between 
Lord  Somers  and,  660. 

Advocate,  duties  of,  require  high  moral 
courage,  371. 

,^neas,  reference  to,  by  Mr.  Wirt,  65 ; 
Dido’s  entreaty  with,  291. 

Age  of  Reason,  the,  mischievous  effects 
of,  560 ; intellectual  inferiority  of  the 
work,  565. 

Alexander  the  Great,  debts  of  Thessa- 
lians remitted  by,  5,  33. 

Amendments,  text  of  war  amendments, 
728,  (See,  also,  Constitution.) 

America,  greatness  of  as  a nation,  8 ; 
period  of  her  independence,  12 ; ne- 
cessities which  compelled  her  revolt, 
13;  struggles  of,  15;  right  of,  to  be 
considered  a nation,  20;  result  had 
she  been  conquered,  21 ; condition  of, 
in  1812,  201. 

Americans,  what  things  distinguished 
for,  348. 

Animus  furandi,  legal  definition  of,  349; 
must  depend  on  something  more  than 
presumption,  352. 

Appropriate  Legislation,”  meaning  of 
the  term,  526, 

Armstrong,  Brig-of-war,  Gen,,  case  of, 
191;  circumstances  of  her  destruction, 
192;  story  of  her  loss,  202;  circum- 
stances under  which  she'fired  the  first 
gun,  225. 

Askin,  Francis,  circumstances  of  his 
death,  127. 

B 

Bacon,  Lord,  law  of  necessity,  p.  125, 
cited,  134,  135  ; extract  from  his  dis- 
course on  the  reign  of  Elizabeth,  598. 

Baker,  Thomas  Harrison,  captain  of  the 
“ Savannah,”  trial  of,  343. 

Baldwin,  Hon.  Henry,  his  charge  in 
United  States  v.  Holmes,  147. 

Bankrupt  Laws,  right  of  Congress  to  es- 
tablish, exclusive,  69  ; object  of  pro- 
hibiting the  States  from  passing,  83. 

Beach,  William  A . his  defense  of 

47 


Col.  North,  449  ; his  argument  before 
the  Commission  in  case  of,  451-480  ; 
observations  as  to  crime,  and  pun- 
ishment, 453  ; defines  consequences 
of  usurping  unlawful  authority,  459  ; 
shows  that  constitutional  rights  can 
not  be  suspended,  464  ; nor  the  Con- 
stitution suspended,  466  ; defines  lim- 
itations of  constitutional  authority, 
467  ; defines  origin  of  legal  tribunals, 

471. 

Belligerents,  rights  of,  in  neutral  terri- 
tory, 204  ; status  of,  defined,  389  ; 
condition  of,  no  protection  to  citizens, 
390- 

Bentham  Jeremy,  observations  of,  as 
as  to  the  security  afforded  by  law,  480. 

Bible,  views  of  Sir  William  Jones  con- 
cerning, 552;  literary  merit  of,  552; 
doctrines  of,  would  banish  wicked- 
ness, 564. 

Black,  Jeremiah  S.,  his  defense  of 
Milligan,  482;  his  argument  before 
the  U.  So  Supreme  Court,  483,  516;  his 
review  of  the  charges  against  Milli- 
gan, 484 ; of  the  tribunal  in  which  he 
was  tried,  484;  of  the  jurisdiction  of 
the  Commission,  485;  enumerates  the 
safeguards  to  protect  from  illegal  pun- 
ishment, 492;  sketches  the  history  of 
jury  trials,  494;  proves  title  to  right 
to  jury  trial,  497;  disposes  of  the  plea 
of  necessity,  500;  historical  review  of 
exercise  of  illegal  authority  throughout 
the  world,  511. 

Blasphemy,  prosecution  of  Williams  on 
charge  of,  554. 

Blockade  defined,  396. 

Bolingbroke,  reference  to,  by  Mr.  North, 
662. 

Bonaparte.  (See  Napoleon  Bonaparte.) 

“Bottle  Riot”  case,  613;  speech  of 
Mr.  Plunket,  615-640;  speech  of  Mr. 
North,  642-666;  nature  of  the  of- 
fense charged,  object  of  the  prosecu- 
tion, 616;  political  events  in  which 
conspiracy  had  its  origin,  625;  narra 
tion  of  the  facts  constituting  charge 
against  the  defendants,  633 ; conduct 

[737] 


738 


INDEX. 


of  the  defense  by  Mr.  North,  641; 
names  of  the  defendants,  641;  wide 
publicity  of  the  proceeding,  643;  con- 
duct of  the  defendants  no  crime,  651 ; 
personal  violence  not  contemplated, 
652;  conduct  of  the  defendants  not 
criminal.  660;  political  aspect  of  the 
verdict  considered,  664. 

Boyle,  reference  to,  by  Mr.  Erskine, 
562. 

Bradish,  Luther,  observations  of  con- 
cerning importance  of  doctrine  of 
stare  aecisis, I2i\. 

Brady,  James  T.,  observations  concern- 
ing public  opinion  in  criminal  cases, 
34;  his  defense  of  the  “Savannah 
Privateers,”  343  ; remarks  of,  345 ; his 
speech  to  the  jury,  in  defense  of  the 
“ Savannah  Privateers,”  346-373;  his 
definition  of  piracy,  346,  347,  369;  nar- 
ration of  the  facts  in  “Savannah” 
case,  352  ; distinguishes  larceny  and 
trespass,  353  ; his  eulogy  on  the  “ lib- 
erty boys,”  355  ; distinguishes  rebel- 
lion and  revolution,  356 ; reference  to 
flags  of  truce,  367;  defines  blockade, 
368;  refers  to  courage  required  of  an 
advocate,  372;  his  peroration  in  “Sa- 
vannah” case,  373. 

British  Debts,  case  of — right  of  a State 
to  confiscate,  1-33;  facts  of  the  case 
narrated,  2;  effect  of  revolution  on,  8. 

Brother  and  sister,  sacred  relationship 
between,  331. 

Brown,  David  Paul,  his  defense  of 
Holmes,  128;  his  speech  to  the  jury, 
128;  defines  the  circumstances  in 
which  the  jury  could  arrive  at  a ver- 
dict, 130;  discusses  the  charge  and 
the  authorities,  132 ; answers  the 
prosecution,  135  ; vindicates  the  cap- 
lain  of  the  lost  vessel,  139;  narrates 
the  facts  of  the  case,  141 ; defines  the 
law  of  self-preservation,  145. 

Brown,  John,  case  of,  referred  toby  Mr. 
Evarts,  417. 

c 

Calkins,  Dr.,  inferences  from  his  refusals 
to  answer,  278. 

Canning,  George,  his  translation  of  Pe- 
tiePs  ode,  592. 

Centralization,  the  tendency  towards, 

531. 

Chancellor.  (See  English  Chancellors.) 

Charles  II.,  profligate  character  of  his 
reign,  336 ; law  of  adultery  in  time  of, 
disregarded,  338. 


Choate,  Rufus,  his  defense  of  Mrs. 
Dalton,  248;  facts  and  circumstances 
of  the  case,  248-249;  his  speech  to  the 
jury,  250-324;  his  arraignment  of  the 
witnesses  to  the  confession,  304;  ar- 
raignment of  John  H.  Coburn,  306; 
arraignment  of  Edward  O.*  Coburn, 
316 ; arraignment  of  Mary  Hunter, 
318  ; effect  of  his  argument,  324. 

Chose  in  action  a subject  of  forfeiture, 

32. 

Christians,  intellectual  superiority  of,  as 
compared  with  infidels,  561. 

Christianity  the  foundation  of  our  juris- 
prudence,  556, 

Citizens,  duty  of  government  to  protect, 
400. 

Civil  Rights  Act,  provisions  of,  521. 

Civil  War,  legal  evidence  of  the  exist- 
ence of,  366,  393;  flags  of  truce,  evi- 
dence of,  367;  blockade,  evidence  of, 
369  ; combatants  entitled  to  rights  of 
war,  368. 

Circumstantial  Evidence,  rules  as  to, 
268. 

Coasting  trade  protected  by  Congress, 
63. 

Coburn,  Edward  0.,his  story  of  the  cake 
and  wine,  315;  arraignment  of,  by 
Rufus  Choate,  316. 

Coburn,  John  H.,  arraignment  of,  by 
Rufus  Choate,  306;  his  evidence  re- 
futed by  husband’s  conduct,  312. 

Colonial  period,  history  of  legal  tenders 
during,  428. 

Commission.  (See  Military  Commis- 
sion.) 

Commerce,  power  to  regulate,  vested  in 
Congress,  47,  61;  duty  of  government 
to  protect.  400. 

Conduct,  what  embraced  within  act  of 
adultery,  333. 

Confessions,  evidence  of,  297;  confes- 
.sions  of  guilt,  when  impossible,  297; 
nature  and  character  of,  as  evidence, 
300. 

Confiscation,  right  of,  in  time  of  war,  7; 
warranted  by  necessity  during  the  rev- 
olution, 13. 

Congress,  powers  vested  in,  50 ; exclu- 
sive and  concurrent  powers,  51,  55; 
may  promote  science  and  useful  arts, 
54;  why  so  vested,  54;  power  to 
grant  patents,  59 ; may  patent  useful 
discoveries,  60;  how  far  can  control 
police  regulations,  63  ; coasting  trade 
protected  by,  63  ; exclusive  power  of, 
to  pass  bankrupt  laws,  69 ; grants  of 
power  to,  79;  object  of  these  constitu- 
tional grants  81-83;  duty  of,  to  pledge 
the  public  credit,  425,  429;  results  of 


INDEX. 


739 


its  measures,  426  ; power  of,  to  create 
a legal  tender,  426 ; war  powers  vested 
in,  430;  alternative  forced  upon,  dur- 
ing the  Rebellion,  437;  the  attributes 
of  sovereignty  presumed  to  exist  in. 
445 ; power  of,  to  secure  rights  of 
citizens,  517,  519;  legislation  of,  to 
enforce  the  Constitutional  Amend- 
ments growing  out  of  the  war,  521; 
cannot  anticipate  the  action  of  a State, 
533  , mode  in  which  Congress  may  en- 
force State  prohibitions,  535  ; limita- 
tion of  criminal  jurisdiction  of,  547. 

Connivance,  a perfect  defense  in  actions 
for  crim.  con.  679;  may  be  actual  or 
constructive,  679 ; when  regarded  in- 
jurious as  a defense,  696 ; indiscre- 
tion not  connivance,  696 ; nature  of 
the  defense  of,  713. 

Constitution  of  United  States,  construc- 
tion of,  50  ; powers  delegated  by,  51  ; 
object  and  purpose  of,  77;  prohibitions 
of,  considered,  77;  grants  of  power 
in,  considered,  79  ; nature  of  the  in- 
strument, 423  ; object  and  purposes 
of,  defined,  424;  abstract  of  powers 
of,  425  ; does  not  prohibit  creation  of 
legal  tenders,  426 ; why  such  power 
not  conferred  in  terms,  427;  how 
exercised  in  colonial  times,  428  ; war 
powers  delegated  to  Congress  by,  430  ; 
rights  under  can  not  be  suspended, 
464;  Constitution  can  not  be  suspend- 
ed, 466;  provisions  of,  sufficient  for 
every  political  necessity,  466  ; author- 
ity of,  clearly  defined,  467;  guaran- 
tees of,  for  preservation  of  personal 
liberty,  492 ; should  be  duly  guarded 
in  time  of  war,  500;  object  of  framers 
of,  505  ; war  amendments  to,  520;  text 
of  the  amendments,  518  ; legislation 
to  enforce  the  amendments,  521  ; ob- 
ject and  design  of  the  amendments, 
524;  prohibition  of  power  in  the  Con- 
stitution, 527  ; rules  of  interpretation 
as  to  war  amendments, 532 ; constitu- 
tional mode  of  enforcing,  536. 

Constitutional  law — power  to  regulate 
commerce,  47;  when  State  bankrupt 
law,  no  bar  to  an  action,  67. 

Constitutional  prohibitions,  object  and 
purpose  of,  77. 

Conspiracy,  how  shown  in  Wilkinson’s 
case,  94 ; direct  evidence  of,  99  ; cir- 
cumstantial proof  of,  loi  ; belief  in,  a 
justification  of  murder,  113  ; charge 
of,  how  used  for  political  purposes, 

548. 

Constructive  treason,  doctrine  of,  de- 
nounced, U4  ; results  of  doctrine  of,  45. 

Contracts,  may  be  dissolved  without  con- 


sent of  the  king,  20 ; obligations  of, 
considered,  70  ; duty  of  performing 
rests  upon  universal  law,  71;  what 
statutes  impair  obligations  of,  72 ; 
State  can  not  pass  law  impairing,  72; 
when  existing  law  forms  no  part  of, 
75  ; law  acts  upon,  when  broken,  73. 

Courts  of  law,  object  and  purpose  of, 
196  ; jurisdiction  of,  must  arise  from 
positive  law,  471. 

Court  of  Claims,  origin  and  character  of, 
194;  importance  of,  198;  power  of  to 
create  remedies,  199. 

Courts-Martial,  when  authorized,  509. 

(See,  also.  Military  Law  ; Military 
Commissions.) 

Crawford,  Hon.  T.  H.,  rulings  in  Sic. 
kies’  case,  718. 

Crime,  must  proceed  from  bad  heart* 
40;  principles  governing  punishment 
of*  378 ; general  nature  of,  and  pun- 
ishment for,  453 ; military  crime,  what 
embraced  in,  455. 

Cruikshank,  William  I.,  U.  S.  v.,  517  ; 
argument  of  David  Dudley  Field  in 
case,  520  ; offenses  charged  in  the 
indictment,  523  ; theory  of  the  prose- 
cution in  the  case,  520 ; two  pro- 
positions which  embrace  the  theory 
of  the  defense,  532  ; practical  results 
of  the  theory  of  the  prosecution,  542. 

Criminal  Conversation,  rule  of  damages 
for,  stated  by  Mr.  Hoar,  676;  rules 
of  law  applicable  to,  678-709  ; the  de- 
fense of  connivance,  679  ; varied  char- 
acter of  defenses  to  the  action,  684  ; 
rule  where  plaintiff’s  conduct  con- 
tributes to  the  misfortune,  687  ; vin- 
dictive damages,  688  ; why  verdicts 
can  not  be  set  aside  for  excess,  693 ; 
nature  and  character  of  the  injury, 
710;  when  defendant’s  conduct  will 
not  defeat  his  right  to  recover,  713. 

Curran,  John  Philpot,  character  of 
his  eloquence,  691  ; his  speech  to  the 
jury  in  Massy  v.  The  Marquis  of 
Headford,  692-707  ; states  the  rule 
of  damages,  693 ; statement  of  the 
questions  to  be  considered  b)#the  jury, 
695  ; derides  the  theory  of  connivance, 
695  ; supposed  remonstrance  with  the 
defendant  before  committing  the  of- 
fense, 697  ; recites  the  shameful  ex- 
perience of  the  defendant,  699  ; por- 
trays defendant’s  disgraceful  conduct, 
700 ; the  verdict  anticipated  by  de- 
fendant, 704 ; depicts  the  husband’s 
sufferings,  706. 

Currency,  right  of  Congress  to  provide 
uniform  system  of,  429. 


740 


INDEX. 


Custom,  law  of,  when  binding  on  a na- 
tion, 9 ; Vattel  on  law  of  custom,  9 ; 
European  customs  not  binding  here, 
10. 

D 

Dalton  Divorce  Case,  facts  and  circum- 
stances, 248-9  ; verdict  for  defendant 
to  be  desired  by  both  parties,  250; 
the  narration,  252  ; defendant’s  ac- 
quaintance with  Sumner,  253 ; her 
love  for  her  husband,  255  ; Dalton 
believed  his  wife  innocent.  257 ; influ- 
ences which  prejudiced  the  husband, 
259  ; defendant’s  alleged  confessions 
explained,  260 ; meeting  of  the  hus- 
band and  wife  after  separation,  261; 
the  mutilated  letter,  262,  314  ; object 
of  the  story  of  the  wife’s  crime  ex- 
posed, 263  ; no  proof  of  defendant’s 
guilt,  266;  no  proof  of  proximate  acts 
of  adultery,  267 ; circumstances  relied 
on  by  plaintiff,  269;  no  motive  to  in- 
duce defendant  to  destroy  her  off- 
spring, 271  ; testimony  shows  absence 
of  motive,  273 ; defendant’s  proof 
narrated,  275  ; defendant’s  evidence 
strongly  corroborated,  280  ; testimony 
of  the  parties  contrasted.  281;  cir- 
cumstances to  show  no  unlawful  love 
declared,  290  ; defendant’s  love  for 
her  husband,  291  ; a conviction  ashed 
on  evidence  which  plaintiff  discred- 
ited, 294;  influences  which  changed 
husband’s  demeanor,  296;  all  the  let- 
ters in  the  case  show  defendant  inno- 
cent, 320  ; reconciliation  of  the  par- 
ties, 324. 

Damages,  rule  of,  in  cases  of  criminal 
conversation,  676,  678,  687,  693,  703, 
709 ; circumstances  to  be  considered 
in  fixing  amount  of,  710 ; moral  con- 
siderations bearing  upon  the  question 
of,  714;  exemplary  damages,  when 
should  be  given,  706  ; vindictive  dam- 
ages not  recoverable  in,  688  ; why 
verdicts  can  not  be  set  aside  for  ex- 
cess, 693. 

Davis,  Jefferson,  letter  of  marque  issued 
by,  as  ft  defense  against  piracy,  353  ; 
text  of  the  letter,  722. 

Debts,  a subject  of  forfeiture  in  com- 
mon war,  4,  8,  25  ; definition  of,  4. 
17;  of  enemy,  may  be  remitted  by 
hostile  nation,  5 ; extent  of  confisca- 
tion of,  6 ; destroyed  by  act  of  British 
government,  17,  28. 

De  Hart,  on  Military  Courts,  454  ; dis- 
tinction by.  between  martial  and  mil- 
itary law,  461 ; defines  martial  law, 
462.' 


Delusion,  proof  of  insanity,  177. 

Dido,  entreaty  of,  with  .^neas,  2qi. 

Divorce,  crime  can  not  be  inferred  from 
unlawful  love  and  opportunity,  in 
cases  of,  284. 

Duvall,  J.,  rulings,  in  U.  S.  v.  Hodges, 
41  ; criticism  of,  by  Mr.  Pinkney,  42. 

E 

Edmonds,  Hon.  John  W.,  his  charge 
in  Klein’s  case,  160. 

Elizabeth,  Queen,  sketch  of  her  reign, 
by  Sir  James  Mackintosh,  596;  causes 
the  first  Gazettes  to  be  printed  in  Eng- 
land, 598  ; reference  to  reign  of,  by 
Mr.  North,  662. 

Ellenborough,  Lord,  defines  political 
libel,  567. 

Emmett,  Thomas  Addis,  Wirt’s  reply  to, 
65  ; reference  to  argument  of,  by  Mr. 
Brady,  361. 

“ Enchantress,”  The,  trial  of  crew  of, 

347. 

Enforcement  Act,  argument  of  Mr. 
Field  as  to  constitutionality  of,  520 ; 
provisions  of,  522. 

England,  offers  an  asylum  for  the  French 
refugees,  599;  for  Swiss  refugees,  605. 
(See,  also.  Great  Britain.) 

English  Chancellors,  early  struggles  of, 

197. 

Equity  Jurisprudence,  early  establish- 
ment of  the  system,  197. 

Erskine,  Thomas,  conduct  at  trial  of 
Dean  of  St.  Asaph,  35  ; reference  to, 
by  Mr.  Pinkney,  38;  extract  from 
speech  of,  in  Hardy’s  trial,  465  ; con- 
ducts the  prosecution  of  Williams 
for  blasphemy,  554  ; his  speech  to  the 
jury,  554-566  ; consistency  of,  in  con- 
duct of  the  case.  555  ; anticipates  the 
defense,  555;  views  of  Christianity,  as 
related  to  jurisprudence,  556  ; views  as 
to  freedom  of  the  press,  557;  distin- 
guishes between  legitimate  inquiry, 
and  abuse,  558;  illustrates  the  in- 
tellectual superiority  of  Christians, 
561  ; views  as  to  intellectual  inferior- 
ity of  Paine’s  work,  565  ; regrets  its 
publication,  566. 

Estoppel,  when  government  not  estop- 
ped by  decision  of  arbitrator,  214. 

Evarts,  William  M.,  his  conduct  of 
the  prosecution  in  the  case  of  the 
“Savannah  Privateers,”  374;  his 
speech  to  the  jury,  375-420;  defines 
elements  of  the  crime  of  piracy,  380 ; 
defines  privateering,  385  ; defines  war, 
395;  defines  right  of  revolution,  404; 


INDEX. 


741 


defines  political  results  of  war,  407  ; 
the  problem  of  government,  405  ; the 
success  of  our  government,  415  ; dis- 
tinguishes power  and  right,  416  ; his 
reference  to  John  Brown,  417. 

Evidence,  application  of  rules  of,  303. 

(See,  also.  Circumstantial  Evidence.) 

Exemplary  damages,  in  cases  of  crim. 
con,,  706. 

Ex-officio  informations,  review  of  the 
law,  as  to  legality  of,  by  Mr.  Plunket, 
618,  638 ; declared  illegal  by  Mr. 
North,  644. 

Expressio  unius  est  exclusio  alterius, 
application  of  maxim,  499. 

F 

Family,  purity  and  sanctity  of  the,  329. 

Fayal,  battle  of,  192. 

Field,  David  Dudley,  his  argument 
on  the  Constitutionality  of  the  “ En- 
forcement Act,”  in  the  U.  S.  Supreme 
Court,  520-549  ; synopsis  of  the  legis- 
lation to  enforce  the  war  amend- 
ments, 521;  defines  meaning  of  term 
“appropriate  legislation,”  526;  de- 
fines the  limitations  as  to  mode  of  en- 
forcing delegated  powers,  526;  re- 
marks on  centralization  of  power,  531; 
defines  the  theory  of  the  defense,  532; 
constitutional  mode  of  enforcing  the 
war  amendments,  536;  theory  and 
object  of  government,  540;  defines 
rules  of  constitutional  interpretation, 

543. 

Flirtation,  evidence  of,  no  proof  of 
crime,  282  ; observations  on  evils  of, 
283;  application  of  law  to,  285;  evi- 
dence of,  when  worthless,  286 ; evi- 
dence of,  consistent  with  a theory  of 
innocence,  287. 

Freeman,  William,  circumstances  of 
trial  and  offense,  149;  his  defense  an 
act  of  justice  and  humanity,  154  ; the 
verdict  as  to  his  sanity  imperfect  and 
unjust,  156;  the  standard  of  intelli- 
gence by  which  he  should  be  judged, 
158;  his  sacrifice  not  demanded  by 
public  security,  164  ; he  could  not 
simulate  madness,  169;  his  insanity 
demonstrated,  172;  rules  for  testing 
his  insanity,  180;  his  personal  appear- 
ance and  demeanor  at  the  trial,  185. 

French  Revolution,  Sketch  by  Sir 
James  Mackintosh,  586. 

G 

Garibaldi,  references  to,  by  Mr.  Brady, 
358 ; by  Mr.  Evarts,  419 ; text  of  | 
letter  of,  723. 


George  IV.,  his  visit  to  Ireland,  627. 

Gibbons,  Thomas,  v.  Aaron  Ogden,  47. 

Gove,  Mr.,  his  character  and  testimony, 
277;  Gove,  Mrs.,  her  character  and 
testimony,  276. 

Government,  problem  of,  405  ; practi- 
cal object  and  spirit  of,  406  ; wisdom 
and  advantages  of  U.  S.  Government, 
408  ; duty  to  protect  its  soldiers,  470; 
theory  and  object  of,  defined  by  Mr. 
Field,  540. 

Great  Britain,  maintenance  of  justice  on 
the  continent  essential  to  security  of, 
577.  (See,  also,  England.) 

Grotius  on  the  right  of  confiscation,  7; 
on  rights  and  obligations,  24. 

H 

Hale,  Sir  Matthew,  his  Christian  char- 
acter, 562. 

Headford,  Marquis,  arraignment  of,  by 
Mr.  Hoar,  671  ; by  Mr.  Curran,  6990 

Henry,  Patrick,  argument  of  in  Jones 
V.  Walker,  4;  analysis  of  his  argu- 
ment, I ; defines  debts,  4 ; rights  of 
hostile  nations  to  remit,  4 ; panegyric 
on  America,  8 ; depicts  the  horrors  of 
the  American  Revolution,  15;  shows 
what  would  have  been  the  result  of 
defeat,  21. 

Herod,  illegal  exercise  of  his  power  in 
Judea,  512. 

Historian,  the  privilege  of,  as  to  a charge 
of  libel,  581. 

History  of  the  Rebellion  reviewed,  433; 
of  the  legal  tender  acts,  435. 

History,  distinguished  from  libel,  575. 

Hoar,  Bartholomew,  his  opening 
for  the  plaintiff  in  Massy  v.  the  Mar- 
quis of  Headford,  688-676;  his  sketch 
of  Rev.  Charles  Massy,  the  plaintiff, 
669 ; his  narration  of  the  facts  in  the 
case,  669;  how  plaintiff’s  suspicions 
were  aroused,  670;  circumstances  of 
the  abduction,  671 ; anticipates  and 
discusses  the  grounds  of  the  defense, 
674;  the  rule  of  damages,  676. 

Hodges  John,  trial  of,  35 ; his  motives 
in  surrendering  prisoners,  43  ; acquit- 
tal of,  46. 

Holmes,  U.  S.  v.,  circumstances  of  case, 
125:  Speech  of  Mr.  Brown,  128;  his 
heroic  conduct,  129;  graphic  picture 
of  his  alleged  crime,  131. 

Homicide,  degrees  of,  40;  law  of, 
where  husband  slays  his  wife’s  seducer, 
325;  law  of  defined,  328;  when  ex- 
cused, 328,  335  ; English  and  Amer- 
lean  authorities  discussed,  338. 


742 


INDEX. 


Hunter,  Mary,  arraignment  of  by  Rufus 
Choate,  318. 

Husband  and  wife,  sacred  character  of 
their  relationship,  329  ; when  husband 
justified  in  slaying  the  adulterer,  334. 

I 

Informations.  (See  Ex-officio  Informa- 
tions.) 

Innocence,  always  presumed,  265. 

Insanity,  a perfect  defense,  158;  how 
truth  of  the  plea  may  be  tested,  159; 
relation  of  the  law  toward  the  insane, 
160  ; difficulty  of  detecting,  164  ; in- 
sanity defined,  166  ; cannot  be  simu- 
lated, 170. 

Insanity,  Ray’s  opinion  as  to,  170; 
causes  of,  discussed,  172  ; delusion, 
proof  of,  177  ; rules  for  testing,  180. 

Intent,  the  essence  of  every  offense, 
38 ; illustrations  of  the  principle,  38 ; 
case  of  Watt  Tyrrel,  40;  question  of, 
one  of  fact  for  the  jury,  349;  can  not 
be  inferred,  must  be  proved,  350; 
legal  presumption  of  may  be  over- 
351. 

International  law — when  government 
must  respond  to  citizen  in  damages, 
I91 ; protection  to  neutral  vessel  un- 
der, 192;  rights  of  belligerent  under, 
204;  nation  must  discharge  its  obliga- 
tions, 205;  extent  of  liability  of  a 
neutral,  207,  208 ; neither  poverty  or 
weakness  a ground  of  exemption, 
210;  must  enforce  the  claim  of  a sub- 
ject, 21 1 ; responsible  for  failure  to  do 
so,  212  ; does  not  act  in  such  case  as 
claimants’  agent,  213;  privateering 
within  the  rules  of,  385. 

Interpretation,  rules  of  as  to  the  consti- 
tutional amendments,  532  ; rules  of 
as  applied  to  the  U.  S.  Constitution. 

Inventors,  rights  of  secured  underact  of 
Congress  alone,  58. 

Ireland,  campaign  of  William  III.  in, 
626;  visit  of  George  IV.  to,  627. 

J 

Jacobinism,  a satire  upon,  no  libel,  585  ; 
spirit  of,  not  extinguished  in  France, 
586;  sketch  of  the  French  Jacobins. 
588;  Jacobins  distinguished  from  Rep- 
ublicans, 590. 

James  II.,  attempt  of  to  abridge  civil 
liberty  defeated,  496. 

Jones,  Sir  William,  views  as  to  inspir- 
ation of  the  Bible,  552. 

Judiciary,  can  act  only  in  pursuance  of 
express  authority,  488;  integrity  of  in 

U.  S.,  489. 


Jurisdiction,  when  none  exists,  proceed 
ings  void,  485  ; of  Federal  and  State 
Courts  defined,  485;  must  arise  from 
positive  law,  471. 

Jurisprudence,  origin  and  growth  of, 

195. 

Jury,  when  judges  of  both  law  and  fact, 
37  ; duty  of  in  murder  trials,  92 ; limb 
tation  of  their  responsibility,  377; 
province  of,  383;  right  of  trial  by, 
secured  by  the  Constitution,  481  ; ar- 
gument of  Judge  Black,  in  defense  of, 
483-516  ; juiy  system  eulogized,  490; 
sketch  of  history  of,  495 ; title  by 
which  it  is  secured,  497;  right  to  not 
lost  in  time  of  war,  504. 

K 

Kentuckians,  contrasted  with  Missis- 
sippians,  by  Mr.  Prentiss,  91 ; re- 
marks on,  120. 

Kleim’s  Case,  review  of,  i6o ; charge  of 
Judge  Edmonds  in,  160. 

L 

Language,  general  and  unambiguous, 
limited  by  circumstances  in  which 
used,  529. 

Larceny  and  Trespass,  distinguished, 
353  ; illustrations  of,  353. 

Law,  observations  by  Paley  as  to  un- 
certainty of,  84  ; no  security  without 
law,  480.  (See,  also,  Levitical  Law ; 
Jurisprudence;  International  Law.) 

Law  of  Nations,  remarks  on,  507.  (See, 
also.  International  Law.) 

Leavitt,  J.,  extract  from  opinion  of,  in 
Vallandingham’s  case,  468. 

Legal  Tender  Acts,  constitutionality  of, 
421;  necessities  which  render  the 
acts  necessary,  425 ; not  prohibited 
by  the  Constitution,  426;  why  the 
power  was  not  conferred  in  terms, 
427;  how  power  exercised  in  colonial 
times,  428  ; the  crisis  which  rendered 
the  acts  necessary,  435 ; power  to 
pass  exists  by  express  grant,  438; 
exists  also  by  implication,  439;  power 
to  create  a legal  tender  existed  prior 
to  the  Constitution,  441;  meaning  of 
the  term,  443 ; distinguished  from 
money,  444;  what  the  subject  of, 
444- 

Lettre  de  cachet,  effect  of,  51 1. 

Letter  of  Marque  issued  by  Jefferson 
Davis,  to  Savannah  Privateers;  a de- 
fense against  piracy,  354  ; resorted  to 
prior  to  1776,  360. 

Levitical  law,  punishment  of  adultery 
under,  322. 


INDEX. 


743 


Libel,  political  libel  defined  by  Lord 
Ellenborough,  567 ; philosophy  of  the 
law  of  libel,  575;  malice  essence  of 
the  crime  of,  581;  a satire  not  a libel, 
584- 

Liberty,  rights  for  preservation  of, 
enumerated,  4Q2 ; history  of,  494 ; 
regarded  as  sacred  by  framers  of  the 
Constitution,  505. 

Liberty  Boys,”  prior  to  the  Revolu- 
tion, 355. 

Locke,  reference  to  by  Mr.  Erskine, 
562. 

Lola  Montez.  (See  Montez.) 

Louis  XIV.  sketch  of,  by  Sir  James 
Mackintosh,  598  ; his  invasion  of 
Holland,  599  ; arraignment  of  by  the 
English  press,  601. 

M 

Macaulay,  Thomas  Babbington,  sketch 
of  the  character  of  Sir  James  Mackin- 
tosh, 568. 

Macbeth,  his  exercise  of  illegal  au- 
thority, 512. 

Mackintosh,  Sir  James,  his  defense 
of  Peltier,  568,  his  speech  to  the  jury. 
569-612:  sketches  the  misfortunes  of 
his  client,  570;  defines  the  real  issue 
as  a struggle  between  royal  power 
and  the  freedom  of  the  press,  572; 
sketches  history  of  freedom  of  the 
press,  573;  shows  that  war  is  never 
beneficial  to  a commercial  nation, 
578;  shows  that  freedom  of  the  press 
can  not  be  impaired  without  danger 
to  the  State,  579;  defines  public 
spirit,  580;  defines  the  privilege  of 
the  historian,  581;  sketches  the 
French  Revolution,  586;  sketches  the 
French  Jacobins,  588;  distinguishes 
them  from  Republicans,  590 ; his  ob- 
servations on  the  ode  ascribed  to 
Chenier,  592  ; text  of  the  ode,  730 ; 
his  observations  on  the  verses  ascribed 
to  a Dutch  patriot,  595;  text  of  the 
verses,  731;  sketches  the  reign  of 
Queen  Elizabeth,  496;  sketches  Louis 
XIV.,  598;  his  sketch  of  William  of 
Orange,  600;  sketches  dismember- 
ment of  Poland,  603;  sketches  the 
invasion  of  Switzerland,  605;  sketches 
the  reign  of  Robespierre,  608. 

Madman,  not  responsible  for  crime, 
152;  execution  of,  murder,  152;  pub- 
lic security  does  not  require  sacrifice 
of,  163. 

Malice,  the  essence  of  the  crime  of 
libel,  581. 


Mansfield,  Lord,  his  declaration  to  the 
mob  in  the  Court  of  King’s  Bench 
in  Wilkes’  case,  550. 

Mannings  Case,  review  of,  335-339. 

Manslaughter  at  sea,  legal  character  of, 
132. 

Manslaughter,  as  distinguished  from 
murder,  325-328. 

Marcy,  William  M.,  reference  to  letter 
of,  360. 

Marque,  letter  of.  (See  “Letter  of 
Marque.”) 

Marshall,  John,  extract  from  argument 
of  in  McCullough  v.  Maryland.  445- 

44b. 

Marriage  relation,  the  sanctity  of,  329. 

Martial  law,  distinction  between  and 
military  law ; rule  as  to  existence  of, 
462. 

Massy  v.  The  Marquis  of  Headford, 
667;  facts  of  the  case,  667  ; opening 
speech  of  Mr  Hoar  to  the  jury  in, 
668;  speech  of  Mr.  Quin  for  the  de- 
fense, 677;  speech  of  Hon.  George 
Ponsonby  for  the  defense,  683 ; speech 
of  John  Philpot  Curran,  for  the  plain- 
tiff, 691 ; Baron  Smith’s  charge  to  the 
jury,  708;  synopsis  of  testimony  in 
the  case,  677  ; character  and  conduct 
of  Mrs.  Massy  referred  to  by  Mr. 
Quin,  680;  questions  for  the  jury  to 
consider,  695;  plaintiff’s  indiscretion 
no  crime,  696;  character  of  the  de- 
fense an  insult  and  an  aggravation, 
701. 

Melancholy,  a stage  of  insanity,  168. 

Metropolitan  Bank  v.  Van  Dyck,  case 
of,  421 ; Judge  Porter’s  argument  in, 
423- 

Mind,  incapable  of  obliteration,  165. 

Military  commission,  can  only  punish 
military  offenses,  453-454;  no  juris- 
diction to  try  civil  offenses,  457 ; 
illegality  of,  486 ; no  power  to  act 
where  courts  are  open,  497;  an 
anomoly  in  the  law,  510;  synonymous 
with  arbitrary  power,  51 1 ; history  of, 

511. 

Military  courts,  powers  assumed  by, 451. 

Militai7  law,  what  constitutes  violation 
of,  454-455  ; civil  offenses  not  viola- 
tions of,  457;  definition  of,  458;  mar- 
tial law  and  military  law  distinguish- 
ed, 461. 

Military  necessity,  when  does  not  au- 
thorize militaiy  tribunal,  452. 

Miller,  Hon.  Samuel  F.,  extract  from 
opinion  of  in  ‘‘  Slaughter-house  ” 
Cases,  543. 

Milligan,  Lambdin  P.,  case  of  in  U.  S. 
Supreme  Court,  481;  argum'^nt  of 


744 


INDEX. 


Judge  Black  in  his  behalf,  483-516; 
the  charges  against  Milligan,  484 ; 
plea  of  necessity  not  applicable  to 
case  of,  500;  neither  law  of  nations, 
nor  laws  of  war,  applicable  to  case 

507. 

Milton,  John,  his  intellectual  power 
referred  to,  by  Mr.  Erskine,  563, 

Mississippians  and  Kentuckians  con- 
trasted, by  Mr.  Prentiss,  91. 

Money,  as  distinguished  from  legal 
tender,  444. 

Montez,  Lola,  account  of,  by  Judge 
Black,  513. 

Murder,  what  constitutes,  40;  distinc- 
tion between,  and  manslaughter, 
325;  defined,  328. 

N 

Napoleon  Bonaparte,  libel  against,  by 
Jean  Peltier,  568  ; how  he  usurped 
power  during  the  French  Revolution, 
586 ; no  exhortation  to  assassination 
of  by  Peltier,  593. 

Napoleon  III.,  acts  as  arbitrator  be- 
tween U.  S.  and  Portugal,  215;  his 
award  not  binding,  216,  219,  221;  what 
question  intended  to  be  referred,  221; 
no  question  of  fact  before,  224 ; his 
fitness  for  arbitrator,  226 ; his  award 
void  for  want  of  jurisdiction,  227  ; he 
sacrifices  Reid’s  claim,  241 ; his  award 
never  ratified  by  claimants,  231. 

National  liability  (see  International 
Law),  208. 

Nature,  in  state  of  legal  obligations 
dissolved,  23  ; law  of,  considered,  134, 
136,  145. 

Necessity,  application  of  law  of,  500; 
cannot  impart  validity  to  an  illegal 
act,  501. 

Negro  plot,  reference  to,  by  Mr.  Brady, 

372. 

Neilson,  Joseph,  observations  of  as  t° 
growth  of  principles,  246. 

Neutrals,  rights  of,  with  respect  to  priva- 
teers, 387, 

Newspapers,  influence  of,  on  domestic 
and  foreign  politics,  602 ; when  gaz- 
ettes first  printed  in  England,  598. 
(See,  also,  “ Press.”) 

Newton,  Sir  Isaac,  character  of  his 
mind,  561. 

New  York,  law  of,  conflicting  with 
power  of  Congress  to  regulate  com- 
merce, 61. 

North,  John  Henry,  his  defense  in 
the  “Bottle  Riot  Case,”  644;  his 
speech  to  the  jury,  642-666 ; his 
learning,  642  ; reference  of  to  wide 


publicity  of  the  case,  643  ; he  reviews 
the  law  upon  the  legality  of  ex-officio 
informations,  644 ; reviews  the  charges 
against  his  clients,  646 ; describes  the 
scene  to  prevent  decoration  of  King 
William’s  statue,  647  ; his  reference 
to  Lord  Plunket’s  tribute  to  memory 
of  the  Prince  of  Orange,  648 ; dis- 
credits testimony  of  the  Atkinson 
Brothers,  654  ; reviews  the  testimony 
of  Michael  Farrell,  657  ; his  arraign- 
ment of  the  witness  who  saw  the 
bottle  “in  transit,”  658;  his  sup- 
posed dialogue  between  Addison  and 
Lord  Somers,  660;  his  reference  to 
Bolingbroke,  Duke  of  Rutland,  and 
Queen  Elizabeth,  662  ; considers  the 
political  aspect  of  the  verdict,  664. 

North,  Samuel,  his  trial  and  acquittal, 
449  ; Argument  of  Mr.  Beach  in  his 
defense,  451-480;  charges  against  not 
a military  crime,  455  ; charges  against 
not  sustained  by  specifications,  456; 
case  distinguished  from  Vallanding- 
ham’s,  468 ; charges  against  not  hos- 
tile to  military  operations,  469  ; wLe- 
ther  punishable  under  State  law  im- 
material, 470  ; questions  of  fact  in- 
volved in,  472  ; private  character  of, 
475  ; interest  and  importance  of  case 
of,  477. 

0 

Ocean,  law  of,  in  time  of  Shipwreck, 
120. 

O’Conor,  Charles,  his  conduct  of  the 
case  of  Brig  Armstrong,  193;  his 
argument  before  the  Court  of  Claims, 
194,  245  ; classifies  rights  and  reme- 
dies, 195  ; the  object  of  legal  tribun- 
als, 196 ; the  early  struggles  of  the 
English  Chancellors,  197;  the  Court 
of  claims  characterized,  198  ; refers  to 
condition  of  the  Republic  in  1812, 
201 ; defines  the  rights  of  belligerent, 
in  neutral  territory,  204;  states  the  cir- 
cumstances of  firing  first  gun  at  Fayal, 
225  ; defines  ground  of  government’s 
liability,  228 ; rule  as  to  compensation 
for  private  property,  237;  his  perora- 
tion, 243. 

O’Brien,  on  military  courts,  454;  defini- 
tion of  military  law,  458. 

Ogden,  Aaron,  ads  Gibbons,  48. 

Ogden  V.  Saunders,  synopsis  of  argu- 
ments on  both  sides,  67,  68;  Mr.  Web- 
ster’s argument  in,  69. 

Oldham,  Henry,  evidence  of  in  Wilkin- 
son trial,  108 ; a-raignment  of  by 
Mr.  Prentiss,  109. 


INDEX. 


745 


Overt  acts,  when  evidence,  40. 

Orange,  Prince  of.  (See  William  III.) 

Orangemen,  charges  in  “ Bottle  Riot 
Case”  not  intended  as  protest  against, 
623;  loyalty  chief  characteristic  of, 
646. 

P 

Paine,  Thomas,  his  “ Age  of  Reason,” 
551;  publication  of  held  blasphemous, 
566;  defended  by  Erskine,  for  pub- 
lishing “ Rights  of  Man,”  554;  in- 
feriority of  his  work,  565. 

Paley,  William,  observations  of,  con- 
cerning uncertainty  of  the  law,  84. 

Paper  money,  compelled  by  necessity, 
18;  effect  of  payment  of  in  war  time, 
26. 

Pardoning  power,  wisdom  and  justice 

of,  379- 

Parent  and  child,  sacred  relationship 
between,  330. 

Patent  Laws,  nature  and  character  of, 
59- 

Peltier  Jean,  his  libel  against  Napoleon 
Bonaparte,  568 ; argument  in  his  de- 
fense by  Sir  James  Mackintosh,  569- 
612;  sketch  of  his  misfortunes,  570; 
the  real  issue,  572;  his  right  to  satir- 
ize Jacobinism,  585;  the  ode  can- 
not represent  his  opinions,  591  ; ob- 
servations on  the  ode  by  Mr,  Mackin- 
tosh, 592;  text  of  the  ode,  730;  ex- 
tract from  indictment  against,  730. 

Pinkney,  William,  argument  of  U. 
S.  V.  Hodges.  35-46 ; conduct  at 
Bladensburg,  35 ; his  strictures  on 
Justice  Duvall ; regards  the  jury 
judges  of  the  law  and  the  facts,  37  ; 
remarks  on  criminal  intent,  38  ; de- 
fines the  law  of  treason,  42  ; arraigns 
the  doctrine  of  constructive  treason, 
44  ; views  of  on  perfection  of  the 
Union,  41 1. 

Piracy,  nature  and  character  of  crime, 
344,  346  ; under  the  law  of  nations, 
and  under  the  acts  of  Congress,  347  ; 
proof  required  to  convict,  349  ; letter 
of  marque,  a defense  against,  354; 
crime  of,  369;  elements  of,  380;  false 
views  of  property  rights,  no  defense 
of,  381;  what  sufficient  evidence  to 
constitute  element  of  force,  382  ; trea- 
son no  defense,  397;  good  faith  no  de- 
fense, 417. 

Plunkett,  William  Conyngham,  his 
conduct  of  the  prosecution  in  Rex.  v. 
Forbes,  613;  his  abilities  as  a lawyer, 
614;  his  oratory,  614;  his  defense 


for  filing  the  information  in  Rex  v . 
Forbes,  615,  638  ; his  speech  to  the 
jury  in,  615-640;  motive  of  in  filing 
an  ex-officio  information,  617  ; legal- 
ity of  the  proceeding,  618  ; his  pane- 
gyric on  William  of  Orange,  624 ; his 
defense  of  Lord  Wellesley.  628;  narra- 
tion of  the  facts  in  case  of  Rex  v. 
Forbes,  633. 

Poland,  crime  against,  and  dismember- 
ment of,  603. 

Police  and  quarantine,  regulations  dis- 
tinguished, 61 ; how  far  controlled  by 
Congress,  63. 

PoNSONBY,  Rt.  Hon.  George,  his  char 
acter  as  a lawyer,  683  ; his  conduct 
of  the  defense  of  the  Marquis  of 
Headford,  683 ; his  speech  to  the 
jury,  684-690  ; remark  as  to  duty  of 
the  jury,  684 ; observations  as  to 
plaintiff’s  deportment,  and  its  in- 
fluence upon  the  wife,  685;  states  the 
rule  of  damages,  687. 

Porter,  John  K.,  argument  of  on  the 
constitutionality  of  the  legal  tender 
acts,  423-448 ; his  definition  of  the 
Constitution,  423  ; its  object,  424 ; 
the  powers  delegated  to  give  it  effect, 
425  ; defines  the  necessity  for  pledging 
the  public  credit,  425;  sketches  his- 
tory of  legal  tenders  in  colonial  times, 
428 ; reviews  the  events  of  the  rebel- 
lion, 431;  defines  the  subject  of  legal 
tender,  443. 

Portugal,  liability  incurred  at  Battle  of 
Fayal,  202;  bound  to  prevent  hos- 
tilities, 206  ; when  liability  became 
extinguished,  227. 

Powers,  exclusive  and  concurrent,  dis- 
tinguished, 51,  59  ; of  a State  may  be 
taken  away  by  implication,  53  ; repug- 
nancy of  conflicting,  53;  what  exclu- 
sive, r,5. 

Power,  synonymous  with  right,  362; 
power  and  right  distinguished,  416. 

Powers,  express  and  implied  prohibi- 
tions of  in  the  Constitution,  527; 
limitation  on  mode  of  enforcing  dele- 
gated powers,  528.  (See,  also.  Con- 
stitution.) 

Prentiss,  Sergeant  S , style  of  his 
eloquence,  86  ; his  defense  of  Judge 
Wilkinson,  86 ; his  speech  to  the 
jury,  87;  his  arraignment  of  the  wit- 
ness Oldham,  109  ; of  other  conspir- 
ators, III  ; his  arraignment  of  Red- 
ding, 121. 

Press,  freedom  of  an  inestimable  bles- 
sing, 557;  prin-ciples  applicable  to 


746 


WDEX. 


liberty  of,  557;  freedom  of  in  the 
European  States,  573  ; why  it  was  tol- 
erated on  the  continent,  573;  how  it 
perished  on  the  continent,  575;  re- 
mains free  only  in  England,  575; 
freedom  of,  can  not  be  impaired  with- 
out danger  to  the  State,  579;  im- 
portance of,  in  time  of  Queen  Eliza- 
beth, 598;  first  gazettes  printed  in 
England,  598;  the  invasion  of  Hol- 
land an  attack  upon  a free  press,  599; 
arraignment  of  Louis  XIV.  by  the 
English  press,  601;  influence  of  news- 
papers on  domestic  and  foreign  poli- 
tics, 602 ; arraignment  by  the  press 
of  the  crime  against  Poland,  603. 

Private  property  cannot  be  taken  with- 
out compensation,  237;  nor  sacrificed 
for  public  ends  without  compensation, 
240. 

Privateers,  rights  of  neutrals  with  res- 
pect to,  387. 

Privateering  under  the  law  of  nations, 
and  the  laws  of  war,  385. 

Prohibition,  a guarantee  not  equivalent 
to.  534.  mode  in  which  Congress  may 
enforce  State  prohibitions,  535 ; of 
the  war  amendments  to  the  Constitu- 
tion considered,  538;  rules  of  inter- 
pretation as  to,  543. 

Public  opinion,  always  militates  against 
the  prisoner,  34. 

Public  trials,  propriety  and  necessity  of, 
264. 

Punishment  can  only  be  exercised  by 
legal  authority,  488 ; law  to  prevent 
unlawful  exercise  of,  492  ; philosophy 
of,  453. 

Q 

Quarantine  and  police  regulations  dis- 
tinguished, 61. 

Quin,  Thomas,  his  opening  for  the  de- 
fense in  Massy  v.  The  Marquis  of 
Headford,  677;  defines  the  rules  of 
law  governing  the  action,  678 ; the 
defense  of  connivance  explained,  679; 
defines  the  character  and  conduct  of 
Mrs.  Massy,  680;  the  verdict  must 
not  be  founded  on  vengeance,  but 
upon  reason  and  justice,  681;  remarks 
concerning  a good  wife,  682. 

R 

Ray,  Dr.,  extracts  from  work  on  in- 
sanity, 170;  rules  given  by,  to  test  a 
maniac  from  a murderer,  180. 

Rebellion,  as  distinguished  from  revo- 
lution, 356;  events  of  war  of,  re- 
viewed, 431 


Reding,  Aloys,  conduct  of,  at  Mor- 
garten,  606 ; supposed  welcome  to 
England,  606. 

Redding,  the  Louisville  tailor,  arraign- 
ment of,  by  Mr.  Prentiss,  121, 

Reid,  Capt.  Sam.  C.,  his  conduct  at  the 
battle  of  Fayal,  192;  forbidden  to 
argue  his  claim  before  Napoleon,  219; 
Napoleon’s  award  not  binding  on, 
221;  question  as  to  whether  he  was 
the  aggressor,  222;  review  of  the  evi 
dence  as  to,  230;  letter  of  Daniel 
Webster,  232;  commendation  of  his 
course ; his  claim  founded  in  justice 
and  equity,  235;  history  of  his  claim, 
242  ; his  personal  motives,  243;  com- 
parison with  Washington,  244. 

Religion,  safety  of  the  State  dependent 
on,  564. 

Remedies  and  rights  classified,  195. 

Remedy,  failure  to  provide,  not  equiva- 
lent to  a deprivation  of  a right,  534. 

Republicans,  in  France,  as  distinguished 
from  Jacobins,  590. 

Revolution,  necessity  which  forced  the, 
13;  distinction  between  revolution 
and  common  war,  15;  horrors  of 
American,  15;  as  distinguished  from 
rebellion,  356;  right  of,  a legal  right, 
358;  secession  synonymous  with,  362; 
evidence  of  right  of,  393 ; remarks  on 
right  of,  404. 

Rex  V.  Forbes.  (See  “Bottle  Riot” 
Case). 

Right,  synonymous  with  power,  362;  as 
distinguished  from  power,  416 ; fail- 
ure to  provide  remedy  for,  not  equiv- 
alent to  deprivation  of,  534. 

Rights  and  remedies  classified,  195. 

Robespierre,  sketch  of  reign  of,  607. 


s 

Sailor,  must  preserve  passenger,  125; 
must  at  all  times  obey  orders,  136. 

Salvage,  law  of,  27. 

Satire,  can  not  be  regarded  as  a libel, 

584- 

Savannah  Privateers,  trial  of,  343; 
proof  required  to.  convict,  349;  acts 
of,  not  necessarily  criminal,  351;  nar- 
ration of  facts  at  trial  of,  351;  nature 
of  their  defense,  and  province  of  the 
jury,  3S3  ; statements  of  the  defense 
of,  391;  novel  political  questions  in 
defense  of,  402. 

Science,  power  of  Congress  to  promote, 
54  ; why  vested  in  Congress,  54  ; ex- 
clusive in  Congress,  55. 

Secession,  synonymous  with  revolution, 


INDEX. 


747 


362 ; inconsistent  with  our  institu- 
tions, 410. 

Seif-defense,  application  of  the  law  of, 
93,  1 17;  illustrations  of  the  rule,  ii8; 
in  hour  of  peril,  135;  in  time  of  ne- 
cessity, 138:  law  of,  in  protecting  a 
wife’s  chastity,  340. 

Self-government,  problem  of,  405. 

Self-preservation,  law  of,  145  ; whether 
an  inherent  right  in  a State,  inde- 
pendent of  the  Constitution,  441. 

Seward,  William  H.,  his  defense  of 
Freeman,  15 1;  his  argument  to  the 
jury,  151-183;  his  letter  before  the 
trial,  150;  extract  trom  his  remarks 
at  preliminary  trial,  15 1;  his  objec- 
tion to  the  arraignment  of  Freeman, 
15 1 ; his  arraignment  of  Dr.  Spencer, 
184;  review  of  the  evidence  of  Free- 
man’s mother,  187. 

Shipwreck,  law  of,  as  to  passengers,  125. 

Sickles,  Daniel  E.,  defense  of,  by  Ed- 
win M.  Stanton,  327;  requests  to 
charge  and  rulings  of  the  court,  on 
the  trial  of  718;  theory  of  the  de- 
fense of,  239. 

Sister,  sacred  relationship  between 
brother  and,  331. 

Slaughter-house  Cases,  extract  from 
opinion  in,  543. 

Smith,  Baron,  his  charge  to  the  jury 
in  I.Iassy  v.  Marquis  of  Headford, 
708;  defines  the  law  in  actions  for 
crim.  con.,  709;  states  the  rule  of 
damages,  709;  defines  the  character 
of  the  defense  of  connivance,  713; 
what  moral  considerations  must  be 
regarded  in  measuring  damages,  714. 

Soldiers,  duty  of  government  to  pro- 
tect, 470. 

Somers,  Lord,  supposed  dialogue  of, 
with  Addison,  660. 

Southern  Confederacy,  recognition  of, 
as  belligerents,  389. 

Spencer,  Dr.,  medical  testimony  of,  re- 
viewed by  Mr.  Seward,  184;  chart 
of  the  mental  faculties,  184;  text  of 
chart,  718. 

Stanton,  Edwin  M.,  his  defense  of 
Daniel  E.  Sickles,  326 ; his  argu- 
ment to  the  court,  327-342. 

Stare  decisis,  importance  of  the  law  of, 
124. 

State,  powers  of,  may  be  taken  away  by 
implication,  53;  laws  of,  must  not 
conflict  with  act  of  Congress,  57;  can- 
not grant  a patent,  59;  cannot  pro- 
hibit use  of  an  invention,  60;  power' 
of,  discussed,  59;  Congress  cannot  an- 


ticipate action  of,  533;  mode  in 
which  Congress  may  enforce  prohibi- 
tions upon,  535  ; how  laws  of  may  be 
made  inoperative  by  Congress,  539; 
safety  of  the,  dependent  on  religion, 

564. 

.Steamboat  Case,  47. 

Stephens,  Alexander  H.,  views  of,  re- 
specting the  sanctity  of  the  Union, 
412 

Stone’s  Case,  reference  to,  39. 

Sturges  V.  Crowninshield,  principles  de- 
cided in,  69,  70. 

Switzerland,  invasion  of,  sketched  by 
Sir  James  Mackintosh,  605. 

T 

Thebans,  debts  of,  remitted,  5,  33. 

Treason,  defined  under  the  Constitu- 
tion, 36;  under  the  “Crimes  Act”  of 
1790,  36;  in  time  of  war,  38,  42  ; for 
levying  war,  39;  overt  acts  of,  40; 
constructive  treason  denounced,  44; 
when  plea  of  war  a confession  of, 
396;  no  defense  against  piracy,  397; 
special  provisions  applicable  to  law 
of,  493- 

Treaty,  effect  of  violation  of,  29;  may 
be  interpreted  by  courts,  31. 

Trespass,  distinguished  from  larceny, 
353- 

Trial,  must  be  had  in  conformity  with 
express  authority,  487  ; necessity  of 
public  trials,  264.  (See.  also.  •'  Jury.”) 

Truce,  exchange  of  flags,  evidence  of 
civil  war,  367. 

u 

Ukase,  use  of,  in  Russia,  511. 

United  States,  a government  of  dele- 
gated powers,  50  ; liability  of  Portu- 
gal to,  202;  bound  to  enforce  claim 
of  a citizen,  21 1;  responsible  for  fail- 
ure, 212;  in  such  a prosecution  it  is 
not  the  agent  of  the  claimant,  213; 
submitting  claim  to  arbitration  cre- 
ates no  estoppel,  214;  when  liability 
of  arose,  227;  ground  of  liability  of, 
228;  duty  of,  in  Armstrong  case,  238; 
wisdom  and  advantages  of  govern- 
ment of,  408  ; marvelous  success  of, 
415;  legal  modes  of  defense  pos- 
sessed by,  50Q. 

United  States  v.  Holmes,  facts  of  the 
case.  125,  141. 

United  States  v.  Armstrong,  191. 

V 

Vattel  on  the  right  of  confiscation,  7; 
on  law  of  custom,  9 ; on  rights  and 
obligations,  24;  distinction  by,  be- 


748 


INDEX. 


tween  rebellion  and  civil  war,  365; 
cited  for  the  prosecution  in  Savannah 
case,  398. 

Vallandingham,  case  of,  distinguished, 
468 ; extract  from  Judge  Leavitt’s 
opinion  in,  468. 

Van  ads.  Metropolitan  Bank,  421; 

Judge  Porter’s  argument  in,  423. 

Vindictive  damages,  in  cases  of  crim. 
con.,  688,  693. 

Virgil,  cited  by  Mr.  Wirt,  65. 

W 

Waite,  Hon.  Morrison  R.,  reference  to 
opinion  of,  in  U.  S.  v.  Cruikshank, 
519- 

War  Amendments.  (See  Constitution.) 

War  distinguished  from  revolution,  15  ; 
levying  of,  defined,  39;  combatants 
in  civil  war  entitled  to  rights  of,  368; 
privateering  under  laws  of,  385; 
rights  of  neutrals  with  respect  to  pri- 
vateers in  time  of,  387  ; status  of  bel- 
ligerents, 389;  actual  existence  of, 
when  no  defense  to  piracy,  394 ; def- 
inition of  war,  395;  when  plea  of,  a 
confession  of  treason,  396 ; political 
results  of,  407;  power  to  wage,  vested 
in  Congress,  430;  events  of  the  war 
of  the  rebellion,  431  ; right  to  jury 
trials  during,  504;  reference  to  laws 
of,  507 ; war  of  1812,  reference  to 
State  of  country  during,  506;  war 
never  beneficial  to  a commercial  na- 
tion, 578. 

Washington,  reference  to  character  of, 

505. 

Webster,  Daniel,  argument  of,  in 
Ogden  V.  Saunders,  67,  83;  defines 
power  of  Congress  to  pass  bankrupt 
laws,  69 ; meaning  of  term  obligation 
of  contracts,  remarks  on  duty  of  per- 
forming contracts,  71 ; State  bank- 
rupt laws  impair,  72 ; existing  law 
forms  no  part  of  contract,  73;  con- 
siders constitutional  grants  and  pro- 
hibitions, 79;  letter  to,  in  case  of 
brig  Gen.  Armstrong,  232;  submits 


the  Armstrong  case  to  Napoleon,  222; 
reference  to  his  eulogy  on  Washing- 
* ton,  419. 

Wellesley,  Lord,  defense  of  his  char- 
acter by  Lord  Plunket,  628  ; his  ob- 
ject in  preventing  the  decoration  of 
King  William’s  statue,  630 ; real  ob- 
ject of  his  visit  to  the  theater,  650. 

Wharton,  Francis,  definition  of  homi- 
cide, 325. 

Wife,  sacred  relationship  between  hus- 
band and,  329;  consent  of  wife  no 
qualification  of  adulterer’s  guilt,  337; 
cannot  shield  him,  339. 

Wilkes’  outlawry  case,  observations  of 
Lord  Mansfield  in  passing  judgment 
in,  550. 

Wilkinson,  Edward  C.,  circumstances 
of  his  arrest  and  trial,  85;  defense  of, 
by  Seargent  S.  Prentiss,  87. 

William  III,  Prince  of  Orange,  com- 
parison of,  to  Tamerlane,  621  ; pan- 
egyric on,  by  Lord  Plunket,  624;  his 
campaign  in  Ireland  a blessing  in  dis- 
guise, 626;  Lord  Wellesley’s  object 
in  preventing  decoration  of  statue  of, 
630;  propriety  of  such  decoration  dis- 
cussed by  Mr.  North,  647;  scene  in 
Dublin  when  the  ceremony  was  for- 
bidden, 647;  Mr.  North’s  reference 
to  Mr.  Plunket’s  panegyric  on,  648; 
panegyric  on,  by  Sir  James  Mackin- 
tosh, 600. 

Williams,  Thomas,  indictment  of,  for 
blasphemy,  551 ; speech  of  Thomas 
Erskine  for  the  prosecution,  554-566; 
his  defense  an  anomaly  in  the  law, 
560. 

Wirt,  William,  argument  of,  in  Gib 
bons  V.  Ogden,  47-66 ; letter  to  Judge 
Carr,  49 ; reply  to  Emmett,  65  ; de- 
fines rules  of  constitutional  construc- 
tion, 50  ; distinguishes  exclusive  and 
concurrent  powers,  51;  defines  nature 
and  character  of  patent  laws,  59;  dis- 
tinguishes quarantine  and  police  regu- 
lations, 61;  his  reply  to  Emmett,  65. 

Witness,  inferences  from  refusal  of,  to 
answer  under  privilege,  278, 


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